Autry et al v. Cleveland County Sheriff's Department et al

Filing 107

ORDER granting 69 Defendant Norman Regional Hospital Authority d/b/a Norman Regional Hospital's Motion to Dismiss; granting in part and denying in part 79 Defendant Marshall L. Rea D.O.'s Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 2/12/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROBERT ALLEN AUTRY, an
Incapacitated Person individually, et al.,
Plaintiffs,
vs.
CLEVELAND COUNTY SHERIFF’S
DEPARTMENT, et al.,
Defendants.

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Case No. CIV-15-1167-D

ORDER
Before the Court are Defendant Norman Regional Hospital Authority’s Motion to
Dismiss Second Amended Complaint [Doc. No. 69] and Defendant Marshall L. Rea,
D.O.’s Motion to Dismiss [Doc. No. 79], both filed pursuant Fed. R. Civ. P. 12(b)(6).
Plaintiffs assert claims against these defendants under 42 U.S.C. § 1983 and the Emergency
Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, and state
law.

Plaintiffs Robert Allen Autry (alleged to be an incapacitated person) and Sandra

Valentine (his mother and guardian) have filed responses [Doc. Nos. 94 & 95], and the
movants have replied [Doc. Nos. 97 & 100].

The Motions are fully briefed and ripe for

decision.
Defendant Norman Regional Health Authority d/b/a Norman Regional Hospital
(“NRH”) seeks a dismissal of all claims against it in the Second Amended Complaint. 1

1

NRH states it is improperly identified in Plaintiffs’ pleading, and has filed the Motion
in its proper name.

As to the federal claims, NRH asserts that Plaintiffs’ claims are time barred and their
pleading otherwise fails to state a claim for relief.

NRH contends any state law tort claim

is governed by Oklahoma’s Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51,
§§ 151-72, and is barred by Plaintiffs’ failure to satisfy statutory preconditions to suit.
Alternatively, if Plaintiffs’ federal claims are dismissed, NRH urges the Court to decline
supplemental jurisdiction of any state law claim.
Defendant Marshall L. Rea, D.O. (“Dr. Rea”) also seeks the dismissal of all claims.
He denies being a proper defendant under either federal statute because, as to § 1983,
Plaintiffs allege no facts to show he was acting under color of state law or acted
unconstitutionally while practicing emergency medicine at NRH, and, as to EMTALA,
only hospitals can be sued.

See 42 U.S.C. § 1395dd(d)(2)(A).

Absent any federal claim

against him, Dr. Rea asks the Court to decline supplemental jurisdiction of Plaintiffs’
negligence claims.
Factual and Procedural Background
Plaintiffs bring claims against NRH and Dr. Rea under federal and state laws to
recover damages allegedly caused by inadequate emergency medical care provided to
Mr. Autry on November 29, 2014.

At the time, Mr. Autry was a pretrial detainee at the

Cleveland County Detention Center (“CCDC”).

This case was filed in October 2015, but

NRH and Dr. Rea were first added as defendants by the Second Amended Complaint [Doc.
No. 49] filed January 4, 2017.

The Court authorized Plaintiffs to exceed the 90-day time

limit for service of process, and Plaintiffs timely served NRH and Dr. Rea on April 11,
2017, and May 10, 2017, respectively.

See 4/27/17 Order [Doc. No. 65].
2

Plaintiffs assert claims against other defendants in the Second Amended Complaint
related to Mr. Autry’s detention at CCDC and the medical care he received there.

Some

of these defendants – Cleveland County Sheriff’s Department, the Oklahoma Indigent
Defense System, EMSA, Cleveland County, Joseph K. Lester in his official capacity as
Sheriff of Cleveland County, the Board of County Commissioners of Cleveland County,
and multiple “John Doe” defendants – have previously been dismissed, by either Plaintiffs
[Doc. Nos. 24-26, 28, 31 & 54] or the Court [Doc. Nos. 33, 65, 82 & 105].
against other defendants remain pending.

Some claims

See 2/5/18 Order [Doc. No. 106].

Only the

facts relevant to Plaintiffs’ claims against NRH and Dr. Rea are stated in this Order.
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). “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.’”
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.”
3

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]t is incumbent upon a plaintiff to ‘identify specific actions

taken by particular defendants’ in order to make out a viable § 1983 . . . claim.”

Pahls v.

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). 2

2

Unpublished opinion cited pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
4

Plaintiffs’ Allegations 3
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.”
Compl. ¶ 21.

See Second Am.

While detained at CCDC in November 2014, Mr. Autry developed a sinus

infection, and made requests for treatment to CCDC’s employees and nurses employed by
CCDC’s contract medical care provider.

In making these requests, both Mr. Autry and

Ms. Valentine communicated information regarding his prior injury and the risk of harm
from an untreated sinus infection, and Ms. Valentine offered to provide medical records.
Mr. Autry received treatment of his symptoms with nonprescription medications to relieve
pain and to reduce fever and inflammation (ibuprofen and naproxen), but the sinus
infection went undiagnosed and untreated by antibiotics.
On November 29, 2014, Mr. Autry was transported to the emergency room of NRH
for evaluation and treatment.

He was examined by Dr. Rea, but “despite signs of

infection, notice of his prior TBI [traumatic brain injury], and headache, Autry was
discharged from the hospital with no further recommendation regarding the infection.”
Id. ¶ 68.

Mr. Autry was “released, not to another medical facility, but back to the care

and custody of the Jail without receiving any antibiotics or receiving any other stabilizing
care.” Id. ¶ 29.

Plaintiffs allege as follows concerning Dr. Rea’s treatment of Mr. Autry:

Rea failed to obtain a thorough medical and surgical history of Autry, failed
to perform a proper physical examination, failed to order appropriate
3

Consistent with the standard of decision, Plaintiffs’ factual allegations are accepted as
true and stated in the light most favorable to them.
5

laboratory tests, failed to order x-rays of sinuses, failed to assess Autry’s
condition in light of the signs and symptoms and history of TBI, and had no
plan of action for Autry. Rea failed to prescribe appropriate medication
and/or admit Autry in the hospital for further diagnostic procedures and
treatment. Further, Rea failed to stabilize Autry and failed to refer him to
another medical facility, [and] instead discharged Autry back to the Jail.
Id. ¶ 76.

Plaintiffs allege that because Mr. Autry was a pretrial detainee at the time of his

examination, he “had the Constitutional right to adequate medical care and NRH and Rea
had the duty to provide adequate medical care.”

Id. ¶ 77.

Plaintiffs also allege that

NRH, “a Public Trust,” and Dr. Rea, “the physician who treated Autry at NRH” were both
“acting under color of state law.”

Id. ¶ 75.

On December 1, 2014, Mr. Autry was transported back to NRH and, later the same
day, underwent emergency brain surgery.

Id. ¶¶ 30-31, 69.

He was diagnosed with “a

serious bacterial infection in his brain as a result of an untreated sinus infection.”

Id. ¶ 33.

After additional surgeries and procedures during December 2014, which included
placements of a feeding tube, a tracheal tube, and a cranial monitoring probe, the treating
physician determined on January 14, 2015, that 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 4 of the Second Amended Complaint that NRH and
Dr. Rea provided constitutionally inadequate medical care to Mr. Autry because “the
failure and delay of appropriate care . . . is a result of deliberate indifference to his health
and well-being because of his incarceration.”

See id. ¶ 85.

Deliberate indifference is

allegedly shown by a lack of proper treatment, “combined with the knowledge that the

6

doctor had all of the information at his disposal when Autry first presented himself to the
hospital.”

Id.

Plaintiffs allege that “[t]he end result of the deliberate indifference was

an unnecessary . . . life-changing injury that resulted in permanent harm to Autry.”

Id.

According to Plaintiffs: “While Autry received care at NRH, his care departed from the
ordinary standard of care, and his diagnosis presents the appearance of deliberate
indifference where the doctor had access to his history, ignored or neglected his symptoms,
and failed to properly treat Autry with catastrophic effect.”

Id. ¶ 83.

Plaintiffs also assert in Count 4 that NRH and Dr. Rea violated EMTALA.
Plaintiffs allege Mr. Aurty was entitled under EMTALA to receive “an appropriate medical
screening examination to determine whether he was suffering from an emergency medical
condition” and, if so, to be “stabilized [and] transferred to another medical facility” rather
than released.

Id. ¶¶ 79, 81.

Plaintiffs claim Mr. Autry “was inappropriately screened

by the emergency medical department of NRH . . . [and] inappropriately treated while at
NRH” in that he “was given a substandard care that departed from what a ‘normal [and]
non-detained’ paying patient would have received which caused catastrophic effects.”
¶ 83.

Id.

Plaintiffs state an EMTALA violation can be inferred from the fact that “Autry was

returned to the hospital in a coma . . . less than two days after his discharge.”

Id. ¶ 82.

Plaintiffs assert in Count 5 that Dr. Rea’s conduct constituted medical negligence
and they seek damages from “the defendants” collectively for past and future medical
expenses and, apparently, for injuries and losses stated in a separate “Damages” section.
See Second Am. Compl. ¶¶ 90, 92, 94-96.

7

Discussion
A.

Plaintiffs’ § 1983 Action
1.

Timeliness

NRH first seeks the dismissal of Plaintiffs’ § 1983 action against it as time barred
by the applicable two-year statute of limitations. 4

NRH asserts that any § 1983 claim was

time barred after November 29, 2016, and Plaintiffs first sued NRH by adding it as a
defendant on January 4, 2017.
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.
This argument is proper because “state law governs the application of tolling in a [§ 1983]
action.” See Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004) (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). 5

4

The statute of limitations for Plaintiffs’ § 1983 action is borrowed from state law, and
is provided by 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); see also Alexander v. Oklahoma, 382
F.3d 1206, 1215 (10th Cir. 2004).
5

Plaintiffs also argue that the accrual of their § 1983 claims was delayed by operation of
a state law discovery rule. However, federal law governs the accrual of a § 1983 claim. See
Wallace v. Kato, 549 U.S. 384, 388 (2007); Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th
Cir. 2004). “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.
8

Regarding the timeliness of Plaintiffs’ § 1983 claims, the Court recently addressed
this issue in ruling on a Rule 12(b)(6) motion filed by the nurses and the private contractor
that provided medical care to Mr. Autry at CCDC. See 2/5/18 Order [Doc. No. 106]
(hereafter, the “February 5 Order”] at 9-13. Upon consideration, the Court found that
Plaintiffs have alleged sufficient facts in the Second Amended Complaint to support tolling
under Oklahoma law based on a legal disability of Mr. Autry. For the same reasons stated
in the February 5 Order, the Court finds that Mr. Autry’s § 1983 claim against NRH should
not be dismissed as untimely at this stage of the case.
The Court also determined, however, that Mr. Autry’s legal disability would not toll
the limitations period for Ms. Valentine’s § 1983 claim. See February 5 Order at 13-14.
It is unclear whether Ms. Valentine asserts a § 1983 claim against NRH in Count 5 of the
Second Amended Complaint, but 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). Thus, 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. 6 Any
§ 1983 claim that Ms. Valentine may have against NRH is based on conduct that occurred

1998) (internal quotation and citation omitted). In this case, Plaintiffs knew of any constitutional
violation related to Mr. Autry’s emergency room care, at the latest, when he suffered debilitating
injuries as an alleged result of the lack of appropriate treatment. The Second Amended Complaint
contains no factual allegations to show otherwise.
6

Further, 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 or
ward. See Brown v. Jimerson, 862 P.2d 91, 93 (Okla. Civ. App. 1993).
9

November 29, 2014. Ms. Valentine articulates no theory of tolling that would save her
claim from the two-year time bar that expired before her action against NRH was filed by
joining it in the Second Amended Complaint on January 4, 2017. Therefore, the Court
finds that Ms. Valentine’s § 1983 claim, if any, against NRH is time barred, and must be
dismissed. 7
2.

Failure to State a Plausible Claim

Both NRH and Dr. Rea challenge the sufficiency of Plaintiffs’ factual allegations to
state a § 1983 claim against them.

NRH admits it is a public trust hospital “deemed a

political subdivision of the State and acting under color of [state] law” for purposes of
§ 1983, but asserts that its § 1983 liability requires Plaintiffs to establish a basis for
municipal liability under Monell v. New York City Department of Social Services, 436 U.S.
658, 691 (1978).

See Def. NRH’s Mot. [Doc. No. 69] at 6 & n.1.

NRH contends the

Second Amended Complaint fails to allege any factual basis for municipal liability, which
requires the existence of an official policy that caused the alleged injury. 8

Dr. Rea asserts

that the Second Amended Complaint states no factual basis for Plaintiffs’ conclusory
allegation that he was acting under color of state law in providing emergency medical
treatment to Mr. Autry.

See Def. Rea’s Mot. [Doc. No. 79] at 5.

Dr. Rea and NRH also

7

Dr. Rea does not raise any time bar issue and, therefore, the Court does not address the
timeliness of Ms. Valentine’s § 1983 claim against Dr. Rea, if any is asserted.
8

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).
10

contend Plaintiffs’ factual allegations fail to show unconstitutional conduct and the
“allegations, at most, constitute medical negligence.”

See Def. Rea’s Mot. at 5; accord

Def. NRH’s Mot. at 7.
a.

Dr. Rea’s Liability

Mr. Autry’s § 1983 claim is based on an alleged violation of his right as a pretrial
detainee to constitutionally adequate medical care by persons acting under color of state
law. Dr. Rea first denies that Plaintiffs have sufficiently alleged he was a state actor,
acting under color of state law. This argument ignores allegations that Dr. Rea provided
Mr. Autry’s emergency medical treatment on behalf of a public trust hospital, which was
admittedly a state actor.

Regardless whether Dr. Rea was working for NRH as an

employee or a contractor, Plaintiffs’ allegations that he was acting on behalf of a public
trust are sufficient to support a finding that he was acting under color of state law while
treating NRH’s emergency room patients. See, e.g., Dubbs v. Head Start, Inc., 336 F.3d
1194, 1216 n.13 (10th Cir. 2003) (private contractor acting for the government carrying
out a public program is a person acting under color of state law); see also Carnes v. Parker,
922 F.2d 1506, 1509 (10th Cir. 1991) (private entity and its employee acting on behalf of
public hospital were state actors).

The Court finds the Second Amended Complaint

sufficiently alleges that Dr. Rea was acting under color of state law to state a § 1983 claim
against him.

11

The applicable constitutional standard prohibits deliberate indifference to an
inmate’s serious medical need. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). 9 A
§ 1983 claim of deliberate indifference to a serious 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. 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. 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
completely denies care although presented with recognizable symptoms which potentially
create a medical emergency.” Id.

9

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
S. Ct. 364 (2017); Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014).
12

In this case, Dr. Rea challenges the sufficiency of Plaintiffs’ allegations to satisfy
the subjective component of the deliberate indifference standard; he does not question that
Mr. Autry’s medical need was sufficiently serious. The claimed risk of harm arises from
Mr. Autry’s pre-existing condition combined with a sinus infection that had developed
while Mr. Autry was detained at CCDC. Dr. Rea’s assertion that the Second Amended
Complaint does not show conduct that would amount to deliberate indifference presents a
close question. Viewing Plaintiffs’ allegations in the light most favorable to Mr. Autry,
however, the Court finds that deliberate indifference could be found from the alleged facts
that Dr. Rea knew but ignored Mr. Autry’s prior medical history and so failed to diagnose
and treat a life-threatening medical condition that a physical examination or diagnostic
procedures would have revealed. Plaintiffs’ allegations, if proven, could support a finding
that Dr. Rea acted with an extraordinary degree of neglect, and satisfy the subjective
component of deliberate indifference.
Upon consideration of facts alleged in the Second Amended Complaint, the Court
finds minimally sufficient allegations to show that Dr. Rea acted with deliberate
indifference to Mr. Autry’s serious medical need. Therefore, the Court finds that the
Second Amended Complaint states a plausible § 1983 claim against Dr. Rea.
b.

NRH’s Liability

NRH asserts, correctly, that it is not vicariously liable for any constitutional
violation committed by Dr. Rea, or any other emergency room worker, but that Mr. Autry
must satisfy the Monell doctrine to state a plausible § 1983 claim against NRH.
of appeals has summarized the doctrine as follows:
13

The court

[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).

“[T]he

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 v. City of Grand Junction Police Dep.’t, 717 F.3d 760,
769 (10th Cir. 2013) (internal quotations omitted). 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).
Upon examination of the Second Amended Complaint, the Court finds no allegation
that NRH had a deficient policy or custom regarding emergency room care of inmates or
that any such deficiency caused Mr. Autry to be denied appropriate medical diagnosis and
treatment.

Plaintiffs wholly fail to address this issue in their response brief, simply

arguing in a conclusory manner that NRH “can be sued for its wrongful actions or
omissions” in failing to diagnose and treat Mr. Autry’s medical need. See Pl.’s Resp. Def.
NRH’s Mot. [Doc. No. 94] at 13-14. Therefore, the Court finds that the Second Amended
Complaint fails to state a plausible § 1983 claim against NRH based on a denial of medical
care to Mr. Autry.

14

B.

EMTALA
NRH seeks the dismissal of Plaintiffs’ EMTALA action as time barred by the two-

year statute of limitations of 42 U.S.C. § 1395dd(d)(2)(C).

Unlike § 1983 claims, state

law tolling rules and exceptions for legal disability do not apply to Plaintiffs’ EMTALA
action. See Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 866 (4th Cir. 1994) (“state law
tolling provisions cannot toll the running of EMTALA’s two-year statute of limitations”);
Vogel v. Linde, 23 F.3d 78, 80 (4th Cir. 1994) (EMTALA’s “statute of limitations runs
against all persons, even those under a disability” because it contains no exception).
Plaintiffs’ only argument regarding the timeliness of their EMTALA claims is that
the Second Amended Complaint should be deemed to relate back pursuant to Fed. R. Civ.
P. 15(c)(1) to the date of the Complaint filed October 15, 2015. See Pls.’ Resp. Br. Def.
NRH’s Mot. at 8-9. This argument ignores the requirements for relation-back under
Rule 15(c)(1)(C), and plainly lacks merit. Because NRH and Dr. Rea were added as
parties by the Second Amended Complaint, the only relation-back provision that could
apply is Rule 15(c)(1)(C), formerly Rule 15(c)(3). See Garrett v. Fleming, 362 F.3d 692,
696 (10th Cir. 2004). By its terms, Rule 15(c)(1)(C) 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, including that “the party to be brought in by amendment
received notice of the action” “within the time period provided by Rule 4(m) for serving
the summons and complaint.” See Fed. R. Civ. P. 15(c)(1)(C)(i). Neither NRH nor
Dr. Rea was named in the original Complaint, and neither is alleged to have received notice

15

of the action within the time limit for service of the Complaint. Therefore, Rule 15(c)(1)
does not apply, and relation-back is not authorized.
EMTALA’s provision for a civil action by a person injured by a violation states:
“No action may be brought under this paragraph more than two years after the date of the
violation with respect to which the action is brought.”

42 U.S.C. § 1395dd(d)(2)(C).

Thus, Plaintiffs had two years form the date of the alleged violation on November 29, 2014,
to bring an EMTALA action. Plaintiffs first filed suit under the statute by adding their
EMTALA claim in the Second Amended Complaint filed January 4, 2017. Therefore,
Plaintiffs’ EMTALA action is time barred and must be dismissed. 10
C.

State Law Negligence Claims
1.

Timeliness

Regarding a state law tort action, NRH contends, and Plaintiffs do not disagree, that
any claim against NRH is governed by the GTCA, which imposes statutory prerequisites
to suit that must be satisfied to overcome the sovereign immunity enjoyed by a political
subdivision of the State of Oklahoma.

The Second Amended Complaint fails to allege

that Plaintiffs complied with the notice and timeliness requirements of the GTCA, and this
failure alone could warrant the dismissal of Plaintiffs’ tort claims against NRH.

See Hall

v. GEO Grp., Inc., 324 P.3d 399, 401, 404 (Okla. 2004) (case “must be dismissed as

10

Dr. Rea asserts that he is not a proper party to Plaintiffs’ EMTALA claim because only
“a participating hospital” can be sued in an action under § 1395dd(d)(2)(A). Plaintiffs agree.
See Pls.’ Resp. Def. Rea’s Mot. [Doc. No. 95] at 8-9 (“[There is no private cause of action [under
EMTALA] against an individual physician. The proper party is [NRH].”). For this additional
reason, Plaintiffs’ EMTALA action against Dr. Rea should be dismissed.
16

untimely”) (“Compliance with the statutory notice provisions of the GTCA is a
jurisdictional requirement to be completed prior to the filing of any pleadings.

The record

before us does not show that [plaintiff] has complied with the notice provisions of the
GTCA, nor does he allege that he has complied.”) (footnotes omitted).
However, NRH does not rely on this omission in the Second Amended Complaint.
Instead, NRH admits receiving timely notice of a tort claim on November 13, 2015, and
submits a copy of the notice.

See Def. NRH’s Mot, Ex. 1 [Doc. No. 69-1]. 11

By

operation of the GTCA, the notice was deemed denied 90 days later on February 11, 2016,
and Plaintiffs were required to file suit within 180 days thereafter, or by August 9, 2016.
No action was filed until Plaintiffs added NRH to this suit on January 4, 2017, over four
months too late.
Plaintiffs do not deny their untimeliness but argue that the GTCA is silent on the
issue of a plaintiff’s incapacity or legal disability and thus the tolling statute of Okla. Stat.
tit. 12, § 96, should apply. 12

Plaintiffs are mistaken.

The notice provisions of the GTCA

address tolling due to incapacity from injury and expressly limit tolling to 90 days.

See

Okla. Stat. tit. 51, § 156(E) (“The time for giving written notice of claim pursuant to the

11

Notably, the only claimant listed in the notice is “Robert Allen Autry c/o Guardian
Sandra Lynn Valentine.” Thus, no claim on behalf of Ms. Valentine individually was preserved.
12

Plaintiffs also urge their relation-back argument, discussed supra. See Pls.’ Resp. Def.
NRH’s Mot. at 7-8. In addition to Rule 15(c)(1)(C), a state law claim may relate back if state law
“allows relation back.” See Fed. R. Civ. P. 15(c)(1)(A). Because the statute and federal rule are
“virtually identical,” the Oklahoma Supreme Court “rel[ies] on federal authority for guidance” and
“ha[s] adopted the construction placed upon it by the federal courts.” See Pan v. Bane, 141 P.3d
555, 558-59 (Okla. 2006). The Court’s determination that Plaintiffs’ federal claims against these
defendants do not relate back to the original Complaint applies equally to the negligence claims.
17

provisions of this section does not include the time during which the person injured is
unable due to incapacitation from the injury to give such notice, not exceeding ninety (90)
days of incapacity.”).

Further, the Oklahoma Supreme Court has held that the general

tolling statute, § 96, does not apply to an action under the GTCA.

See Hall, 324 P.3d at

405 (“where the GTCA includes specific provisions, the general statute of limitations does
not apply”).

Therefore, Plaintiffs’ tort action against NRH is untimely and must be

dismissed. 13
2.

Supplemental Jurisdiction

Dr. Rea urges the Court to decline supplemental jurisdiction over Plaintiffs’
negligence claims pursuant to 28 U.S.C. § 1367(d)(3) if all federal claims are dismissed.
Because the Court has determined that Plaintiffs’ § 1983 action against Dr. Rea under the
Second Amended Complaint should proceed, this argument does not support dismissal of
the action against Dr. Rea.
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

13

Dr. Rea does not assert that Plaintiffs’ tort claims against him are governed by the
GTCA, nor challenge the timeliness of Plaintiffs’ medical negligence action. The Oklahoma
Supreme Court has held that “the procedural requirements of the [GTCA] for presenting claims to
governmental entities do not apply to tort claims against a governmental employee when plaintiff’s
claim is based upon allegations that the employee’s acts were outside the scope of his or her
employment” so the claim is beyond the reach of the statute. See Pellegrino v. State ex rel.
Cameron Univ., 63 P.3d 535, 540 (Okla. 2003). The statute of limitations for medical
malpractice actions expressly provides that “minority or incompetency when the cause of action
arises will extend said period of limitation.” Okla. Stat. tit. 76, § 18.

18

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).

Conclusion
For the reasons set forth above, the Court finds that the Second Amended Complaint
fails to state a claim on which relief can be granted under § 1983 or state law against NRH,
and fails to state a claim under EMTALA against any defendant.

However, the Second

Amended Complaint states a plausible § 1983 claim against Dr. Rea, and the state law
negligence action against him should not be dismissed.
IT IS THEREFORE ORDERED that Defendant Norman Regional Hospital
Authority d/b/a Norman Regional Hospital’s Motion to Dismiss Second Amended
Complaint [Doc. No. 69] is GRANTED and Defendant Marshall L. Rea, D.O.’s Motion to
Dismiss [Doc. No. 79] are GRANTED in part and DENIED in part, as set forth herein.
IT IS SO ORDERED this 12th day of February, 2018.

19