Autry et al v. Cleveland County Sheriff's Department et al
ORDER granting in part and denying in part 67 Motion to Dismiss; granting in part and denying in part 83 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 2/5/2018. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROBERT ALLEN AUTRY, an
Incapacitated Person individually, et al.,
CLEVELAND COUNTY SHERIFF’S
DEPARTMENT, et al.,
Case No. CIV-15-1167-D
Before the Court are the Motions to Dismiss of Defendants Turn Key Health Clinics,
ESW Correctional Healthcare, LLC, Cindy Bilyeu, Raven Funez, and Deloris Brown [Doc.
No. 67] and of Defendant Deanna Wheeler [Doc. No. 83], filed pursuant Fed. R. Civ.
P. 12(b)(6). 1
The moving defendants are a private contractor and its employees who
provided medical care to inmates at the Cleveland County Detention Center (“CCDC”). 2
Defendant Wheeler also moves for dismissal pursuant to Rule 12(b)(3) (improper
venue) and 28 U.S.C. § 1915 and § 1915A (regarding in forma pauperis and prisoner cases). See
Def. Wheeler’s Mot. [Doc. No. 83] at 1. These citations are not explained in the supporting briefs
and have no apparent application. Defendant Wheeler also cites Rule 12(b)(1), but subject matter
jurisdiction clearly exists for a civil rights action under 42 U.S.C. § 1983. She instead appears to
challenge the Court’s exercise of supplemental jurisdiction over any state law tort claim.
The Second Amended Complaint names two business entities as medical contractors,
but Defendants contend there is only one entity: “Turn Key Health Clinics, LLC d/b/a ESW
Correctional Healthcare.” See Defs.’ Mot. Dismiss [Doc. No. 67], cover page, n.1. Plaintiffs do
not dispute this contention and propose to cure any misidentification by amendment. See Pl.’s
Resp. Br. [Doc. No. 93] at 12. For brevity, the Court refers to this defendant hereafter as “Turn
Key,” which is the short form used by Plaintiffs in their pleading to refer to Turn Key Health
Clinic, LLC. See Second Am. Compl. [Doc. No. 49], ¶ 59.
The Second Amended Complaint groups these defendants together – referring to them
collectively as “contract medical providers” – and asserts identical claims against them.
Because their Motions assert common grounds for dismissal, they are taken up together.
Plaintiffs Robert Allen Autry (alleged to be an incapacitated person) and Sandra
Valentine (his mother and guardian) have filed responses [Doc. Nos. 93 & 96] in
opposition to the Motions, and the movants have replied [Doc. Nos. 99 & 102].
Motions are fully briefed and ripe for decision.
Factual and Procedural Background
Plaintiffs bring claims under 42 U.S.C. § 1983 and state law for damages allegedly
caused by a failure to provide medical care to Mr. Autry while he was a pretrial detainee
The case was filed in October 2015, but the movants were first added as
defendants by the Second Amended Complaint filed January 4, 2017.
The first movants
were served in April 2017 and filed their motion on May 2, 2017; they refer to themselves
collectively as the “Turn Key Defendants.”
Defendant Wheeler was served later, appears
through separate counsel, and filed her motion on June 1, 2017.
Each of the individual
movants is alleged to be “a nurse employee who provided healthcare to detainees at the
See Second. Am. Compl. [Doc. No. 49], ¶¶ 14-17.
Defendants Cleveland County Sheriff’s Department, Joseph K. Lester in his official
capacity as Sheriff of Cleveland County, the Board of County Commissioners of Cleveland
County, and other “John Doe” defendants have previously been dismissed, by either
Plaintiffs [Doc. Nos. 31 & 54] or the Court [Doc. Nos. 33, 65, 82 & 105]. 3
also sued Norman Regional Health Authority and Marshall L. Rea, D.O. based on the
emergency medical treatment provided to Mr. Autry at Norman Regional Hospital
(“NRH”); these defendants have also filed motions to dismiss, which are addressed by a
As pertinent to the Motions, Plaintiffs allege that Mr. Autry suffered accidental head
trauma as a teenager that “left him with injuries to his skull which made sinus infections
especially dangerous” because “his injuries allowed for an untreated sinus infection to
cause brain infection.”
See Second Am. Compl. ¶ 21.
November 2014, Mr. Autry developed a sinus infection.
Valentine, about it on November 13, 2014.
While detained at CCDC in
He first told his mother, Sandra
The next day, Ms. Valentine informed a
receptionist at CCDC that Mr. Autry had symptoms of a sinus infection and that “he needed
immediate medical attention due to his traumatic brain injury (‘TBI’).”
Id. ¶ 23.
Valentine was given a telephone number to contact CCDC’s medical staff, and she “called
the number repeatedly and left multiple messages for the Jail’s medical staff regarding
Autry’s TBI history, her concerns about his untreated sinus infection, and the dangers of
an untreated sinus infection in his situation.”
Id. ¶ 24.
Originally, Plaintiffs also sued the Oklahoma Indigent Defense System, EMSA and
Cleveland County, but dismissed those defendants at an early stage. See Stipulations [Doc.
Nos. 24-26 & 28].
On November 20, 2014, Mr. Autry told his mother that CCDC’s medical staff had
given him only nonprescription medications to relieve pain and to reduce fever and
inflammation (ibuprofen and naproxen).
Ms. Valentine told the medical staff the same
day that Mr. Autry needed additional medical care and medication.
On November 21,
2014, Mr. Autry spoke to “Jail staff” about his condition and “requested medical attention
and antibiotics” but received none.
Id. ¶ 27.
On November 25, 2014, Mr. Autry was
seen by CCDC’s medical staff and personally “informed them of his condition and his
previous TBI,” but he received no additional treatment and was returned to his cell.
On November 26 or November 29, 2014 (id. ¶¶ 29, 68, 75), Mr. Autry was
transported to the emergency room of NRH for evaluation and was examined by Dr. Rea.
However, Mr. Autry was returned to the jail “without receiving any antibiotics” (¶ 29) and
without instructions for treatment of the infection (¶ 68).
On December 1, 2014, Ms. Valentine received a call asking her to provide written
consent for Mr. Autry to receive emergency surgery; he “had been found unconscious in
his cell and had been transported back to NRH.”
Id. ¶¶ 30-31, 69.
Later the same day,
Mr. Autry underwent emergency brain surgery at NRH; he was diagnosed with “a serious
bacterial infection in his brain as a result of an untreated sinus infection.”
Id. ¶ 33.
surgery involved a craniectomy to open his skull and allow drainage, and the placement of
a shunt to reduce intracranial pressure.
A second emergency surgery was performed at
NRH on December 5, 2014, to enlarge the skull opening and permit surgical drainage.
Then beginning December 12, 2014, Mr. Autry underwent a series of operations and
procedures to place a feeding tube, insert a tracheal tube, and replace a cranial monitoring
On January 14, 2015, the treating physician determined Mr. Autry “was totally
incapacitated from a brain injury resulting from a brain abscess and subdural empyema”
and “would likely never return to an independent state.”
Id. ¶ 40.
Plaintiffs assert in Count 3 of the Second Amended Complaint that Turn Key and
Defendants Bilyeu, Funez, Brown, and Wheeler were “contract medical providers to Autry
while he was in the care and custody of the Sheriff of Cleveland County” and were acting
under color of state law with a constitutional duty to provide adequate medical treatment.
Id. ¶¶ 59, 61.
Plaintiffs state that Turn Key and, upon information and belief, all of the
nurses employed by Turn Key (Bilyeu, Funez, Brown, and Wheeler) delivered medical
care to Mr. Autry at CCDC, and that these “contract medical providers, despite being on
notice of Autry’s potentially life-threatening condition, ignored the risks by ignoring his
requests for additional medical treatment.”
Id. ¶¶ 61, 70.
Plaintiffs allege that “[t]he
contract medical providers delayed the initiation of proper care” and “delayed in approving
a transfer to the NRH emergency room or any other hospital.”
Id. ¶¶ 70-71.
Plaintiffs claim the contract medical providers’ failure to provide care “constituted
deliberate indifference to the health and well-being of Autry.”
See id. ¶¶ 72, 73.
Plaintiffs allege “[t]he end result of the deliberate indifference was an unnecessary,
unreasonable . . . life-changing injury that resulted in permanent harm to Autry.”
Id. ¶ 73.
Further, Plaintiffs claim that the delay and denial of adequate medical care to Mr. Autry
was the result of “[a] lack of proper training, a lack of proper supervision by Dr. John Doe
[Turn Key’s doctor], [and] a failure to propagate proper policies and procedures, which
includes the failure to properly communicate the serious risk faced by Autry with improper
For relief, Plaintiffs seek to recover “actual damages allowed by law,”
punitive damages, and attorney fees.
Id. ¶¶ 73, 99.
All movants first seek the dismissal of Count 3 as time barred by the statute of
limitations applicable to a § 1983 claim. 4
Second, the movants challenge the sufficiency
of Plaintiffs’ factual allegations to state a § 1983 claim against any particular defendant.
They argue that the Second Amended Complaint fails to show any one of them acted with
deliberate indifference to a serious medical need of Mr. Autry while he was confined at
Finally, Turn Key asserts that it cannot be held liable under § 1983 based on a
respondeat superior theory of vicarious liability for its employees’ acts but, instead,
Plaintiffs’ § 1983 claim against Turn Key must be based on a municipal liability theory,
which requires the existence of an official policy or custom that caused the alleged injury. 5
Turn Key argues that the Second Amended Complaint contains insufficient factual
allegations to support such liability.
Turn Key and its co-movants also challenge the timeliness of service of process and
request dismissal under Rule 4(m). However, Plaintiff joined these defendants on January 4,
2017, and completed service of process on them by April 12, 2017. See Pls.’ Resp. [Doc. No. 64]
at 3, ¶ 8. Based on Plaintiffs’ response to a show cause order [Doc. No. 61], the Court expressly
found that Plaintiffs had “shown good cause for untimely service of the defendants who were
added by the Second Amended Complaint and served outside the 90-day time limit of Fed. R. Civ.
P. 4(m).” See 4/25/17 Order [Doc. No. 65] at 1. The Court also ruled that “the untimely service
of all defendants who were served by April 12, 2017, should be excused.” Id. at 2. The Court
finds no sufficient reason to revisit that ruling.
See Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017) (“Municipalities can be liable
under 42 U.S.C. § 1983 only for their own unlawful acts. Accordingly, to prove a § 1983 claim
against a municipality, a plaintiff must show the existence of a municipal policy or custom which
directly caused the alleged injury.”) (citation omitted).
Regarding any state law tort claim, Turn Key and its co-movants assert a time-bar
defense based on Okla. Stat. tit. 12, § 95(A)(1), which provides a one-year limitation period
for a claim based on conduct arising out of an inmate’s detention.
defendants contend the Second Amended Complaint fails to state a common law tort claim
They also assert sovereign immunity from suit under the provisions of
Oklahoma’s Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51, §§ 151-72. 6
Finally, Defendant Wheeler asserts that a negligence claim against a licensed
medical professional, including a nurse, requires the affidavit of a qualified expert.
Okla. Stat. tit. 12, § 19.1. She contends the expert report provided by Plaintiffs as an
attachment to the Second Amended Complaint is insufficient to satisfy this requirement.
This contention has been overcome by subsequent legal developments.
On October 24,
2017, the Oklahoma Supreme Court determined that “[S]ection 19.1 is an impermissible
barrier to court access and an unconstitutional special law.”
Inc., 405 P.3d 681, 683 (Okla. 2017).
John v. St. Francis Hosp.,
The supreme court announced:
stricken” from Title 12 of the Oklahoma Statutes.
“Section 19.1 is
Thus, the affidavit requirement is
no longer enforceable, and the dismissal requested by Defendant Wheeler on this basis
would be improper.
The Motion of Turn Key and its employees raises an additional issue of whether punitive
damages are recoverable. However, a Rule 12(b)(6) motion tests the sufficiency of a claim; it is
not a proper vehicle for challenging the propriety of punitive damages. “‘[T]he prayer for relief
is no part of the cause of action and . . . the parties are entitled to such relief and to such judgment
as the complaint . . . makes out.’” Coll v. First Am. Title Ins. Co., 642 F.3d 876, 901 (10th Cir.
2011) (quoting Daniels v. Thomas, 225 F.2d 795, 797 & n.5 (10th Cir. 1955)). Thus, the Court
does not address the issue of available damages in ruling on a Rule 12(b)(6) motion.
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
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). “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
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.’”
R. Civ. P. 8(a)(2)).
Id. at 679 (quoting Fed.
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
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]t is incumbent upon a plaintiff to ‘identify specific actions
taken by particular defendants’ in order to make out a viable § 1983 . . . claim.”
Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (quoting Tonkovich v. Kan. Bd. of Regents,
159 F.3d 504, 532 (10th Cir. 1998)) (emphasis added by the court in Pahls).
“‘[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,
549 U.S. 199, 215 (2007)).
A party seeking to toll 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) (citing Aldrich v. McCulloch Prop.,
Inc., 627 F.2d 1036, 1044 n.4 (10th Cir. 1980)); see Heil v. Wells Fargo Bank, 298 F.
App’x 703, 707 (10th Cir. 2008) (unpublished). 7
Timeliness of § 1983 Action
The movants assert that Plaintiffs’ § 1983 claims against them became time barred
on December 1, 2016, before the Second Amended Complaint was filed. The statute of
limitations for Plaintiffs’ § 1983 action is borrowed from state law, and is the two-year
period of Okla. Stat. tit. 12, § 95(A)(3). See Wilson v. Garcia, 471 U.S. 261, 280 (1985);
Meade v. Grubbs, 841 F.2d 1512, 1523-24 (10th Cir. 1988). Federal law governs the
accrual of a § 1983 claim. See Wallace v. Kato, 549 U.S. 384, 388 (2007); Alexander v.
Unpublished opinions are cited in this Order pursuant to Fed. R. App. P. 32.1(a) and 10th
Cir. R. 32.1(A).
Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). 8 But “state law governs the application
of tolling in a [§ 1983] action.” Alexander, 382 F.3d at 1217 (footnote omitted); Fratus
v. Deland, 49 F.3d 673, 675 (10th Cir. 1995) (“For section 1983 actions, state law
determines the appropriate statute of limitations and accompanying tolling provisions.”);
see also Hardin v. Straub, 490 U.S. 536, 539, 544 (1989) (federal courts apply state tolling
rules in § 1983 cases unless doing so would defeat federal policy goals; a Michigan tolling
statute for inmates’ lawsuits was “consistent with § 1983’s remedial purpose”).
Plaintiffs primarily argue that their § 1983 claims are timely based on an equitable
tolling doctrine or a tolling statute, Okla. Stat. tit. 12, § 96, due to Mr. Autry’s incapacity. 9
The Tenth Circuit has summarized Oklahoma law regarding these issues as follows:
In general, Oklahoma permits the tolling of a statute of limitations in
two circumstances. First, the existence of a “legal disability” provides
proper grounds for equitable tolling. See Okla. Stat. tit. 12, § 96 (West
2000). Although the exact definition of this term remains unclear,
Oklahoma courts have applied this provision only for plaintiffs whose
competency is impaired or who have not reached the age of majority. See,
e.g., Lovelace v. Keohane, 831 P.2d 624, 629 (Okla.1992) (finding that those
who could conduct their own business affairs over time are sufficiently
competent to render them ineligible for “legal disability” tolling); Okla. Stat.
“In general, under the federal discovery rule, claims accrue and the 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. In particular, a civil rights action accrues when facts that
would support a cause of action are or should be apparent.” Alexander, 382 F.3d at 1215 (internal
quotations and citations omitted). “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.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir.
1998) (internal quotation and citation omitted).
Plaintiffs also argue that the accrual of their claims was delayed by operation of a state
law discovery rule. However, as stated infra, federal law governs the accrual issue. It seems
Plaintiffs would have known that a constitutional violation occurred as soon as Mr. Autry suffered
debilitating injuries as an alleged result of deliberate indifference to his medical needs. Plaintiffs
do not allege any facts in their Second Amended Complaint to show otherwise.
tit. 12, § 96 (citing incompetence and failure to attain the age of majority as
grounds for meriting legal disability tolling).
Second, . . . if defendants engage in “false, fraudulent or misleading
conduct” calculated to lull plaintiffs into sitting on their rights, the limitations
period may not be triggered. Jarvis v. City of Stillwater, 732 P.2d 470, 473
(Okla. 1987); see also Hurt v. Garrison, 192 Okla. 66, 133 P.2d 547, 550
(1942) (holding a statute of limitations tolled during a period of fraudulent
concealment). . . .
Alexander, 382 F.3d at 1217. 10 Only the first tolling rule is implicated here; Plaintiffs do
not allege the movants engaged in any fraudulent or misleading conduct designed to lull
them into inaction.
The Oklahoma tolling statute provides in pertinent part as follows:
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. This provision has been interpreted broadly according to its terms:
A legally disabled person’s “legal claims are preserved until one year after his disability is
removed. The few exceptions to this rule are stated explicitly in the statute itself.”
Freeman v. Alex Brown & Sons, Inc., 73 F.3d 279, 281 (10th Cir. 1996) (footnote
The rule applies “regardless of whether [the legally disabled person] is
The court also opined in Alexander that extraordinary circumstances might justify
tolling under federal law. See Alexander, 382 F.3d at 1219. However, no such circumstances
are alleged in this case.
One exception is a separate set of deadlines for medical malpractice actions (id. at 281
n.2), which is discussed in Plaintiffs’ briefs. By its terms, this exception applies only to a medical
malpractice claim, not a civil rights or other personal injury action. Further, an Oklahoma
appellate court has ruled this exception is invalid as an unconstitutional special law. See Mowles
ex rel. Mowles v. Hillcrest Med. Ctr., 832 P.2d 24, 26 (Okla. Civ. App. 1991).
represented by a guardian who might otherwise bring the action within the normal
limitation period.” Freeman, 73 F.3d at 281. Also, “§ 96 does more than merely delay
the running of the relevant statute of limitation for a specific period of time. It indefinitely
suspends the statute of limitation and preserves the legally-disabled person’s claim . . . .”
Id. Legally-disabled persons include minors and incompetent adults; in Freeman, the
person had “suffered debilitating physical injuries in a workplace accident” that “rendered
him unable to communicate with others, comprehend his surroundings, or make decisions
on his own behalf” and his mother was appointed as his guardian. Id. at 280.
In this case, the movants argue that Plaintiffs have failed to allege sufficient facts to
support tolling under Oklahoma law based on a legal disability of Mr. Autry. 12 The Court
is not persuaded by Defendants’ arguments, which overlook Plaintiffs’ allegations that
Mr. Autry “was found unconscious in his cell” and “returned to the hospital in a coma” on
December 1, 2014, and that the injuries he suffered as result of the untreated infection
rendered him “totally incapacitated from a brain injury.” See Second Am. Compl. ¶¶ 31,
40, 69 and 82. Plaintiffs’ expert describes Mr. Autry’s condition as a “vegetative state.”
Id. attach. 1 [Doc. No. 49-1]. 13 Ms. Valentine brings this action as “Guardian for Ward
Robert Allen Autry.” See Second Am. Comp. [Doc. No. 49] p.2 (introductory paragraph)
Turn Key and its co-movants also mistakenly argue that § 96 is a special statute of
limitations that should not apply as a matter of federal law.
Documents attached to a complaint can properly be considered under Rule 12(b)(6).
See Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194,
1201 (10th Cir. 2011); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
and ¶ 96. The Court finds these allegations to be sufficient to state a potential basis for
tolling the limitations period for Mr. Autry’s § 1983 claim, subject to later proof.
Defendants point out that Mr. Autry’s legal disability would not toll the limitations
period for Ms. Valentine’s § 1983 claim. See Def. Wheeler’s Reply Br. [Doc. No. 99]
at 2. While the exact nature of Ms. Valentine’s claim is unclear, it is a “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.” Archuleta v. McShan, 897 F.2d 495, 497 (10th
Cir. 1990). Earlier in this case, Sheriff Lester challenged Ms. Valentine’s § 1983 claim
under Rule 12(b)(6), and she identified her claim as one of “substantive due process . . .
based on the violation of her right to familial companionship and society.” See Pls.’ Resp.
Def. Lester’s Mot. Dismiss [Doc. No. 62] at 9. The Court found “in Plaintiffs’ argument
and the alleged facts of the Second Amended Complaint, no basis to support a substantive
due process claim of Ms. Valentine based on physical injuries suffered by her son,” and
dismissed the claim.
See 9/15/17 Order [Doc. No. 105] at 12.
Regardless of the
correctness of this merits ruling, any § 1983 claim asserted by Ms. Valentine must be her
own, and a legal disability of her son would not toll the running of the statute of limitations
applicable to her claim. 14
An Oklahoma appellate court has held that § 96 does not preserve a parent or guardian’s
individual claim to recover medical expenses incurred on behalf of an injured child. See Brown
v. Jimerson, 862 P.2d 91, 93 (Okla. Civ. App. 1993). Although not binding, this intermediate
court decision is “some evidence of how the state supreme court would decide the issue,” and
provides persuasive authority. See Clark v. State Farm Mut. Auto. Ins. Co., 433 F.3d 703, 709
(10th Cir. 2005); Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013).
Any claim based on Ms. Valentine’s loss of familial association with her son
accrued, at the latest, when he suffered a life-threatening brain injury requiring surgical
treatment and intervention to provide nutrition and breathing assistance, which occurred
December 12-13, 2014. 15 Ms. Valentine articulates no theory of tolling that would save
her claim from the two-year time bar that expired in December 2016, before her action
against the moving defendants was filed by joining them in the Second Amended
Complaint on January 4, 2017. Therefore, the Court finds that Ms. Valentine’s § 1983
claim is time barred, and must be dismissed. 16
Individual Nurses’ § 1983 Liability
Mr. Autry’s § 1983 claim is based on an alleged violation of his right as a pretrial
detainee to constitutionally adequate medical treatment.
The constitutional standard
prohibits deliberate indifference to an inmate’s serious medical need. See Estelle v.
Gamble, 429 U.S. 97, 104 (1976). 17 A § 1983 claim of deliberate indifference to a serious
The claim might be based on allegations that Ms. Valentine was not allowed to visit
her son in the hospital until she got a court order on December 3, 2014. See Second Am. Comp.
¶¶ 32, 35. If so, the claim accrued on that date.
Plaintiffs make a cursory argument that the relation-back doctrine of Fed. R. Civ.
P. 15(c)(1)(C) should apply and render their action filed on the date of the original Complaint.
See Pls.’ Resp. Turn Key Defs.’ Mot. [Doc. No. 93] at 7-8; See Pls.’ Resp. Wheeler’s Mot. [Doc.
No. 96] at 6-7. By its terms, however, Rule 15(c)(1)(C) does not apply; it requires an amended
pleading that “changes the party or the naming of the party against whom a claim is asserted” and
the satisfaction of certain conditions. The moving defendants were not named in the Complaint
unless a “Unknown John/Jane Doe Jail Personnel” designation applies to them. See Compl. [Doc.
No. 1], ¶ 11. The Tenth Circuit has held that Rule 15(c)(1)(C), formerly Rule 15(c)(3), does not
apply to a “John Doe” defendant. See Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004).
A pretrial detainee’s right to medical care arises from the Due Process Clause of the
Fourteenth Amendment, but the deliberate indifference standard of the Eighth Amendment applies.
See Rife v. Okla. Dep.’t of Pub. Safety, 854 F.3d 637, 647 (10th Cir.), cert. denied sub nom., 138
medical need has both objective and subjective components. See Al-Turki v. Robinson,
762 F.3d 1188, 1192 (10th Cir. 2014); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005).
The objective component requires a plaintiff to show the existence of a medical need that
was “sufficiently serious.” See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Al-Turki,
762 F.3d at 1192-93; Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). The
subjective component requires a showing that the defendant “kn[ew] of and disregard[ed]
an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. This means a
defendant “must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. To
satisfy the subjective component “requires the prison official to disregard the risk of harm
claimed by the prisoner.” Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009).
Where a medical professional is involved, “the subjective component is not
satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his
considered medical judgment,” such as deciding “whether to consult a specialist or
undertake additional medical testing.” Self v. Crum, 439 F.3d 1227, 1232 (10th Cir.
2006). The standard is satisfied “where the need for additional treatment or referral to a
medical specialist is obvious” but ignored, such as where “a medical professional
recognizes an inability to treat the patient due to the seriousness of the condition and his
corresponding lack of expertise but nevertheless declines or unnecessarily delays referral”
or “a medical professional completely denies care although presented with recognizable
S. Ct. 364 (2017); Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014); Martinez v.
Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).
symptoms which potentially create a medical emergency.”
“A prison medical
professional who serves ‘solely . . . as a gatekeeper for other medical personnel capable of
treating the condition’ may be held liable under the deliberate indifference standard if she
‘delays or refuses to fulfill that gatekeeper role.’” Mata, 427 F.3d at 751 (quoting Sealock,
218 F.3d at 1211); accord Self, 439 F.3d at 1232.
In this case, the individual movants challenge the sufficiency of Plaintiffs’
allegations to satisfy the subjective component of the deliberate indifference standard; they
do not question that Mr. Autry’s medical need was sufficiently serious. 18 The claimed
risk of harm arises from Mr. Autry’s pre-existing condition (which apparently was not
visible but was disclosed in medical records and history), combined with a sinus infection
that developed or became manifest while Mr. Autry was detained at CCDC. The nurses
assert, correctly, that Plaintiffs’ allegations show Mr. Autry received medical care through
the administration of medications to treat his symptoms; they argue he simply did not
receive the care that was requested, or perhaps required. They contend these allegations
amount to mere negligence, if anything, and not deliberate indifference.
Upon consideration of the facts alleged in the Second Amended Complaint, the
Court finds sufficient allegations, although barely, to demonstrate deliberate indifference
to Mr. Autry’s medical need by the nurses who allegedly provided his care at CCDC.
Drawing all reasonable inferences in Plaintiffs’ favor, the nurses employed by Turn Key at
The court of appeals has explained: “Where a prisoner claims that harm was caused
by a delay in medical treatment, he must ‘show that the delay resulted in substantial harm’ in order
to satisfy the objective prong of the deliberate indifference test.” Al-Turki, 762 F.3d at 1193
(quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)).
CCDC – Defendants Bilyeu, Funez, Brown, and Wheeler – provided medical treatment to
Mr. Autry during the period of his confinement in CCDC with a sinus infection. They
were informed by Mr. Autry personally and by his mother’s telephone messages of the
particular risk he faced, and Ms. Valentine offered to provide medical records.
communicating with CCDC’s medical providers in this manner, Ms. Valentine was
following jail procedures as instructed by the persons with whom she spoke. Thus, it is
reasonable to assume the messages were received. Nevertheless, one could infer from the
allegations of the Second Amended Complaint that Mr. Autry was not assessed by anyone
other than a nurse until he was first transported to the emergency room at NRH on
November 29, 2014 (viewing the allegations most favorably to him). A reasonable fact
finder could conclude that the nurses ignored Mr. Autry’s need for diagnosis and treatment
by a medical professional capable of addressing his medical condition, and so declined or
unreasonably delayed to perform their gatekeeper role.
The Court acknowledges that the nurses challenge the sufficiency of Plaintiffs’
allegations to show that any of them was involved in the alleged denial or delay of medical
treatment for Mr. Autry’s sinus infection. 19
The Court recognizes that “[i]ndividual
liability under § 1983 must be based on the defendant’s personal involvement in the alleged
Curiously, Plaintiffs respond to this argument (and others) by referring to a “proposed
Third Amended Complaint.” See, e.g., Pls.’ Resp. Turn Key Defs.’ Mot. [Doc. No. 93] at 13;
Pls.’ Resp. Def. Wheeler’s Mot. [Doc. No. 96] at 10. Plaintiffs say that, among other things, the
amendment will identify “the contract medical providers individually and specifically in each
paragraph where the group name had previously been utilized for the purpose of achieving a ‘short
and plain’ pleading.” Id. However, Plaintiffs have not made a motion or other request to further
amend their pleading and, to date, have not filed any proposed amendment.
constitutional violation.” Schneider v. City of Grand Junction Police Dep.’t, 717 F.3d
760, 768 (10th Cir. 2013) (internal quotation omitted).
While Plaintiffs’ allegations
against the nurses collectively as “contract medical providers” presents a close question,
the Court finds that the participation of all Turn Key’s nurse employees in deliberately
indifferent conduct could reasonably be inferred from the facts that Mr. Autry had multiple
contacts with medical providers at CCDC and his condition allegedly went untreated for
more than two weeks.
For these reasons, the Court finds that the Second Amended Complaint states a
plausible § 1983 claim against each of Defendants Bilyeu, Funez, Brown, and Wheeler.
Turn Key’s § 1983 Liability
Tenth Circuit law holds that “a private actor [acting under color of state law] ‘cannot
be held liable solely because it employs a tortfeasor – or, in other words . . . cannot be held
liable under § 1983 on a respondeat superior theory.’”
Dubbs v. Head Start, Inc., 336
F.3d 1194, 1216 (10th Cir. 2003) (quoting Monell v. N.Y. City Dep.’t Soc. Servs., 436 U.S.
658, 691 (1978)).
Instead, “the Monell doctrine [extends] to private § 1983 defendants”
acting under color of state law.
The court of appeals has summarized the doctrine
[A] plaintiff must show the existence of [an official] policy or custom which
directly caused the alleged injury. A policy or custom includes a formal
regulation or policy statement, an informal custom that amounts to a
widespread practice, decisions of municipal employees with final
policymaking authority, ratification by final policymakers of the decisions of
subordinates to whom authority was delegated, and the deliberately
indifferent failure to adequately train or supervise employees.
Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017) (citation omitted).
longstanding interpretation of § 1983’s standards for imposing municipal liability” requires
that “a plaintiff must identify a . . . policy or custom that caused the injury” and “show that
the policy was enacted or maintained with deliberate indifference to an almost inevitable
constitutional injury.” Schneider, 717 F.3d at 769 (internal quotations omitted) (citing Bd.
of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997); City of Canton v. Harris, 489 U.S.
378, 389 (1989)). For causation, “the challenged policy or practice must be closely related
to the violation of the plaintiff’s federally protected right.” Id. at 770 (internal quotation
omitted). Dismissal of a § 1983 claim against a private party that is otherwise subject to
suit under the statute is appropriate where the plaintiff “has failed to identify any custom
or practice of [the party] that has a direct causal link to the alleged constitutional
See Sherman v. Klenke, 653 F. App’x 580, 592-93 (10th Cir. 2016)
(unpublished opinion) (affirming dismissal of § 1983 action against contractor that
provided inmate medical services).
Upon examination of the Second Amended Complaint, the Court finds only
conclusory allegations that an inadequate policy of Turn Key regarding medical care of
CCDC inmates existed. Plaintiffs fail to identify a particular policy or practice of Turn
Key that was deficient, or to suggest that any such deficiency caused Mr. Autry to be denied
or receive delayed medical treatment, except a vague allegation that there was a lack of
“proper policies and procedures” to communicate serious medical risks of inmates such as
See Second Am. Compl. ¶ 73.
From these bare allegations, no deficient
Turn Key policy or custom can be discerned, and no causal connection between a policy
and Mr. Autry’s injury is apparent. Even in their brief, Plaintiffs do not identify a medical
care policy at stake, but propose to add “affirmative allegations that the policies and
procedures of [Turn Key] caused injury to Mr. Autry” in a “proposed Third Amended
Complaint” that has never materialized. See Pls.’ Resp. Br. Turn Key Defs.’ Mot. [Doc.
No. 93] at 15; see supra note 19. Therefore, the Court finds that the Second Amended
Complaint fails to state a plausible § 1983 claim against Turn Key based on a denial of
medical care to Mr. Autry.
Supplemental State Law Claims
The movants first assert that the Second Amended Complaint fails to state any
negligence claim against them. This assertion is based on a narrow reading of Plaintiffs’
Count 5, which bears the heading “State Law Violation,” alleges only that the
individual defendants who are physicians, Drs. Doe and Rea, “failed to provide reasonable
and standard medical care and services to Autry” and failed “to meet the standard of care
reasonably required in the profess[ion].”
See Second Am. Compl. ¶¶ 87-88.
Count 5 also incorporates by reference previous paragraphs of the Second Amended
Complaint, and Plaintiffs allege in Count 5 that the “negligence of the defendants, and each
of them” caused past and future medical expenses.
Id. ¶ 90.
As discussed above,
Plaintiffs’ factual allegations regarding the failure to provide adequate medical care to
Mr. Autry at CCDC could be viewed as claiming negligence, as a lesser degree of
misconduct than deliberate indifference to a serious medical need.
Thus, the Court finds
that the Second Amended Complaint plausibly states common law negligence claims
against the movants.
Timeliness of Negligence Action
The movants disagree regarding the proper statute of limitations for Plaintiffs’
negligence claims. Turn Key and its co-movants rely on the one-year limitation period
of Okla. Stat. tit. 12, § 95(A)(11) for “actions filed by an inmate or by a person based upon
facts that occurred while the person was an inmate.”
Defendant Wheeler argues that the
two-year limitation period of Okla. Stat. tit. 76, § 18, for medical malpractice actions
Without addressing who is correct, Plaintiffs again rely on the tolling provision
of Okla. Stat. tit. 12, § 96, for legally disabled persons.
For the same reasons stated infra
regarding Mr. Autry’s § 1983 claim, the Court finds that a basis for tolling the limitations
period based on a legal disability is sufficiently alleged in the Second Amended
Further, to the extent Defendant Wheeler is correct, the statute expressly
provides that “minority or incompetency when the cause of action arises will extend said
period of limitation.”
Okla. Stat. tit. 76, § 18.
Regarding any negligence claim asserted by Ms. Valentine individually, the Court
finds for the same reasons stated supra regarding her § 1983 claim that a legal disability of
Mr. Autry does not provide a basis for tolling the limitations period for her claim.
The Court recognizes that Section 96 contains separate rules for medical malpractice
actions. See supra note 11. The Oklahoma Court of Civil Appeals has determined these rules
are invalid as a special law prohibited by the Oklahoma Constitution. See Mowles ex rel. Mowles
v. Hillcrest Med. Ctr., 832 P.2d 24, 26 (Okla. Civ. App. 1991). The Court finds this decision to
be persuasive authority, particularly in light of the Oklahoma Supreme Court’s repeated rejection
of legislative attempts to create other special rules, including special limitations rules, for medical
malpractice actions. See Reynolds v. Porter, 760 P.3d 816, 821 (Okla. 1988); see also Zeier v.
Zimmer, Inc., 152 P.3d 861, 868 n.36 (Okla. 2006) (citing Mowles with approval).
Court therefore finds that any negligence claim asserted by Ms. Valentine against the
moving defendants is time barred and must be dismissed.
Turn Key and its employees assert in their Motion that the GTCA provides them
with sovereign immunity from suit.
Specifically, they rely on a statutory provision that
defines state “employees” to include “licensed medical professionals under contract with
city, county, or state entities who provide medical care to inmates or detainees in the
custody or control of law enforcement agencies.”
See Okla. Stat. tit. 51, § 152(7)(b)(7).
The movants identify no basis in the Second Amended Complaint, however, from which
to conclude that Turn Key was a licensed medical professional or that the nurses employed
by Turn Key (assuming they were licensed) had contracts with Cleveland County to
provide medical care to CCDC inmates.
In short, the factual allegations of the Second
Amended Complaint provide insufficient information from which to conclude that Turn
Key or its employees fit the statutory definition of “employees” protected by the GTCA.
Opportunity for Amendment
Plaintiffs have made no motion, or even an informal request, to further amend their
pleading if it is found to be deficient.
Further, prior opportunities for amendment have
failed to yield a fully sufficient pleading, and the deadline set by the Scheduling Order
expired long ago.
Under these circumstances, the Court finds that Plaintiffs have failed
to show “justice so requires” leave to amend.
See Fed. R. Civ. P. 15(a)(2).
For the reasons set forth above, the Court finds that the Second Amended Complaint
fails to state any claim by Plaintiff Sandra Valentine individually on which relief can be
granted, and fails to state a § 1983 claim against Defendant Turn Key Health Clinics, LLC
or ESW Correctional Healthcare.
However, the Second Amended Complaint states a
plausible § 1983 claim by Plaintiff Robert Autry against Defendants Bilyeu, Funez, Brown,
and Wheeler, as well as a plausible state law negligence claim by Plaintiff Robert Autry
against all moving defendants.
IT IS THEREFORE ORDERED that Defendants Turn Key Health Clinics, ESW
Correctional Healthcare LLC, Cindy Bilyeu, Raven Funez, and Deloris Brown’s Motion
to Dismiss [Doc. No. 67] and Defendant Deanna Wheeler’s Motion to Dismiss [Doc.
No. 83] are GRANTED in part and DENIED in part, as set forth herein.
IT IS SO ORDERED this 5th day of February, 2018.
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