Chrisman et al v. Oklahoma County Board of County Commissioners et al

Filing 39

ORDER granting in part and denying in part 23 Motion to Dismiss; granting in part and denying in part 26 Motion to Dismiss. Count 15 is dismissed without prejudice, subject to Plaintiff filing a Second Amended Complaint within 21 days. Signed by Honorable Timothy D. DeGiusti on 9/7/2018. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ELIZABETH ANN CHRISMAN,
as Special Administrator of the Estate of
Charlton Cash Chrisman, Deceased, and
Individually as Surviving Mother and
on behalf of the Heirs of
Charlton Cash Chrisman, Deceased.
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS
OF OKLAHOMA COUNTY, et al.,
Defendants.

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Case No. CIV-17-1309-D

ORDER
Before the Court is Defendants’ Joint Motion to Dismiss [Doc. No. 23] filed by the
Board of County Commissioners of Oklahoma County (“Board”), Oklahoma County
(“County”), Sheriff P.D. Taylor, Michael Coburn, Kristian Rangel, Francisco Plascencia,
and John Whetsel. Also before the Court is Defendant Colton Ray’s Motion to Dismiss
[Doc. No. 26], which Defendant Brian Harrison adopted [Doc. Nos. 35, 36]. Plaintiff filed
a combined response in opposition [Doc. No. 30], and Defendants filed a joint reply [Doc.
No. 33]. The matter is fully briefed and at issue.
BACKGROUND
This case arises out of the death of Charlton Cash Chrisman while he was in
Defendants’ custody at the Oklahoma County Jail. Plaintiff Elizabeth Ann Chrisman, as
Special Administrator of Mr. Chrisman’s estate and his mother, asserts claims against the

Board, the County, Sheriff P.D. Taylor, John Whetsel, and detention officers Michael
Coburn, Kristian Rangel, Francisco Plascencia, Colton Ray, Brian Harrison and John Doe.
To summarize, the Amended Complaint [Doc. No. 20] alleges:
 Mr. Chrisman was arrested by the Oklahoma City Police Department at Deaconess
Hospital on April 18, 2017, after crashing his vehicle into the hospital emergency
room lobby. Upon his arrest, he was taken to the Oklahoma County Jail, where he
remained until his death on April 19, 2017.
 Mr. Chrisman was emotionally and psychologically unstable and was openly
experiencing outbursts, hallucinations, delusions and confusion. Jail medical
personnel noted that he needed to be placed on suicide watch.
 On a prior occasion in early 2017, Mr. Chrisman was confined at the jail. Jail
medical personnel at that time recommended he undergo a mental health evaluation.
Prior to that jail stay, Mr. Chrisman had been diagnosed with Anosognosia
(impaired awareness of illness), had been a patient at the Crisis Center, and was
released from the Crisis Center to Red Rock Mental Health Facility for appropriate
medications.
 At the time of his most recent delivery to the Oklahoma County Jail, Mr. Chrisman
had in his possession a vial of Olanzapine, an antipsychotic. It was evident from
the prescribed vial that Mr. Chrisman had been a recent patient at Griffin Memorial
Hospital in Norman, Oklahoma.
 Mr. Chrisman was placed in a separate cell and kept isolated from the other
detainees. After being placed in this separate cell, Mr. Chrisman allegedly activated
a sprinkler head on the cell ceiling, which caused the cell and outside hallway to
flood.
 Mr. Chrisman’s separate cell was well lit, and the door to the cell contained a
window through which detention officers and jail personnel could clearly see Mr.
Chrisman. Mr. Chrisman was unarmed and stripped down to his underwear.
 Defendant detention officers, named above, assumed positions by the cell door. Ray
and Harrison stood in front of the cell door each holding pepper ball shotguns.
 The Amended Complaint alleges that all Defendant detention officers worked
“together and in concert with each other.” [Doc. No. 20 at ¶ 37].
2

 Prior to opening the cell door, one Defendant detention officer told Ray and
Harrison not to talk to Mr. Chrisman, but to “just shoot him.” Id.
 One Defendant detention officer opened the cell door while Ray and Harrison fired
pepper balls at Mr. Chrisman, hitting Mr. Chrisman about 16 times.
 Mr. Chrisman’s hands and arms were at his side when the cell door opened, as he
stepped out, and as the pepper balls were fired. Mr. Chrisman attempted to protect
himself by covering his head and body with his arms and by running down the hall
away from the pepper ball blasts.
 Defendant detention officers physically battered Mr. Chrisman while his hands were
cuffed and his feet were shackled, including execution of “knee drops” on Mr.
Chrisman’s back. They sprayed pepper spray in Mr. Chrisman’s face and covered
his face with a spit hood, which inhibited Mr. Chrisman’s ability to breathe.
 Defendant detention officers were part of a “S.E.R.T.” team, a specialized team of
detention officers used to respond to problem prisoners.
 Following Mr. Chrisman’s death and after reviewing the video of the incident,
Sheriff Taylor reassigned all Defendant detention officers to positions within the
jail where they would not have contact with prisoners.
 After Mr. Chrisman’s death, Sheriff Taylor publicly admitted that various policies
and procedures at the jail were improper, including the policy that allowed S.E.R.T.
team members to self-train.
 Since January 1, 2016 and the filing of the Amended Complaint on January 10,
2018, thirty prisoners inside the Oklahoma County Jail have died. Mr. Chrisman
was the twentieth prisoner to die inside the Oklahoma County Jail.
 The Board, the County and Whetsel deliberately refused to pay the jail’s contracted
medical provider the millions of dollars it was owed.
Plaintiff asserts federal claims under 42 U.S.C. § 1983 based on Chrisman’s Fourth
Amendment right to be free from unreasonable seizures and excessive force, and his
Fourteenth Amendment due process rights (as a pretrial detainee) to appropriate medical
care. Plaintiff also asserts state law claims for negligence, battery and excessive force.
3

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)). “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. The “plausibility
standard” announced in Twombly and Iqbal is not a “heightened standard” of pleading, but
rather a “refined standard.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.
2012) (citing Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011)).
Under the “refined standard,” plausibility refers “to the scope of the allegations in the
complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable
to plausible.’” Khalik, 671 F.3d at 1191; see also Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570).
Further, the Tenth Circuit has noted that “[t]he nature and specificity of the
allegations required to state a plausible claim will vary based on context.” Khalik, 671
F.3d at 1191 (quoting Kansas Penn Gaming, 656 F.3d at 1215). “Thus, [it has] concluded
the Twombly/Iqbal standard is ‘a middle ground between heightened fact pleading, which
is expressly rejected, and allowing complaints that are no more than labels and conclusions
or a formulaic recitation of the elements of a cause of action, which the Court stated will
not do.’” Id. (quoting Robbins, 519 F.3d at 1247).
4

“In other words, Rule 8(a)(2) still lives. There is no indication the Supreme Court
intended a return to the more stringent pre-Rule 8 pleading requirements.” Id. It remains
true that “[s]pecific facts are not necessary; the statement need only ‘give the defendant
fair notice of what the … claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555); see also al-Kidd v.
Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) (“Twombly and Iqbal do not require that the
complaint include all facts necessary to carry the plaintiff’s burden.”).
Finally, “[w]hile the 12(b)(6) standard does not require that Plaintiff establish a
prima facie case in [its] complaint, the elements of each alleged cause of action help to
determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at 1192
(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). “[A] well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged]
facts is improbable, and ‘that a recovery is very remote and unlikely.’” Sanchez v. Hartley,
810 F.3d 750, 756 (10th Cir. 2016) (citing Twombly, 550 U.S. at 556).
DISCUSSION
Defendants move to dismiss on the following grounds: (1) asserting claims against
the Board, the County, and Sheriff Taylor in his official capacity is redundant; (2) the
Amended Complaint fails to state a claim upon which relief may be granted; and (3)
Oklahoma’s Governmental Tort Claims Act bars Plaintiff’s negligence claims.

5

A.

Asserting Claims Against the Board, the County, and Sheriff Taylor in
his Official Capacity is Redundant and Unnecessary

Here, Plaintiff has sued Sheriff Taylor in his official capacity, the Board and the
County. These claims all amount to actions against the County and are permissible
methods of pleading a Monell1 claim. Although permissible under § 1983, such claims are
duplicative and unnecessary given that Plaintiff has named the Board as a defendant. See
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“an official capacity suit is, in all respects
other than name, to be treated as a suit against the entity.”); OKLA. STAT. tit. 19, § 4 (a suit
against a county must be brought by naming the board of county commissioners of that
county); Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (bringing “a claim against
[a sheriff] in his official capacity … is the same as bringing a suit against the county.”).
Accordingly, Plaintiff’s claims against Sheriff Taylor2 in his official capacity and
Plaintiff’s claims against Oklahoma County are dismissed.
B.

The Amended Complaint Includes Facially Plausible Claims for Relief

Defendants assert that Plaintiff’s Amended Complaint fails to state a claim upon
which relief can be granted because (1) it contains “group” allegations that do not provide
sufficient notice to each individual defendant of Plaintiff’s allegations against them; (2)

1

Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658 (1978).

2

Whether an official has final policymaking authority for purposes of § 1983 is a question
of state law. McMillian v. Monroe County, Ala., 520 U.S. 781, 786 (1997). Under
Oklahoma law, the sheriff is the final policymaker regarding the county’s jail. OKLA.
STAT. tit. 19, § 513; OKLA. STAT. tit. 57, § 47; see also Lopez v. LeMaster, 172 F.3d 756,
763 (10th Cir. 1999). Thus, the County (by suit against the Board) may be liable for Sheriff
Taylor’s actions as a final policymaker regarding the Oklahoma County Jail.
6

Plaintiff fails to allege any facts to show that Defendants had notice of an unconstitutional
policy; and (3) punitive damages are barred against municipalities under § 1983. Plaintiff
in her response acknowledges her request for punitive damages against the Board and the
County was made in error and withdraws the request. Pl.’s Resp. [Doc. No. 30 at 20].
(1)

Plaintiff’s Allegations Sufficiently Provide Fair Notice to Each
Defendant

Citing to Robbins, Gray and DuBois, Defendants allege that the Amended
Complaint repeats the same allegations against every Defendant without explaining “who
did what to whom.” Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909 (10th Cir. 2012);
Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008); DuBois v. Bd. of County Comm’rs
of Mayes County, Okla., Case No. CIV-12-677-JED-PJC, 2014 WL 4810332 (N.D. Okla.
Sept. 29, 2014). The Court disagrees. Viewing the Amended Complaint as a whole,
Plaintiff’s allegations are sufficient to provide all Defendants fair notice of Plaintiff’s
claims and the grounds upon which they rest.
In Robbins, the parents of a deceased infant brought a § 1983 action against the
Oklahoma Department of Human Services (“DHS”), the DHS director, local DHS social
workers, unnamed DHS employees, a daycare center, and the owner-operator of the
daycare center. Robbins, 519 F.3d at 1246. The parents claimed that DHS had “informed”
them that the daycare was the “only” daycare facility available due to their financial
restrictions. Id. The child suffered blunt force trauma to the head while at the daycare and
died. Id. The owner-operator of the daycare was charged with first-degree murder after
the Chief Medical Examiner listed the manner of death as a homicide. Id.
7

The Tenth Circuit held that the complaint failed to give adequate notice of the
plaintiffs’ due process claims and that the plaintiffs had failed to adequately plead
supervisory liability. Id. at 1252-1253. The court noted that “[c]ontext matters” and “[f]air
notice under Rule 8(a)(2) depends on the type of case,” and the plaintiffs must “nudge their
claims across the line from conceivable to plausible.” Id. at 1248-1249. This requires
enough facts “to give the defendants notice of the theory under which their claim is made.”
Id. at 1249. It does not, however, mean that complaints in cases subject to qualified
immunity must plead “all the factual allegations necessary to sustain a conclusion that
defendant violated clearly established law.” Id.
Throughout their complaint, the parents in Robbins repeatedly referred to “the
defendants” without specifying which defendant did which act. Id. at 1250. Count 1 of
the complaint grouped all the defendants together. Id. The court noted that the alleged
tortious acts committed by the director of DHS and the private owner and operator of the
daycare would be entirely different in character. Further, the alleged tortious acts of the
individual social workers involved would be different. Thus, grouping these defendants in
one single allegation was a mistake. Id. The complaint did not reference which defendants
had direct contact with the child or the child’s parents or how the defendants could be
individually liable for deprivations of the child’s constitutional rights. Id.
Similarly, the Tenth Circuit in Gray noted in Footnote 9 that “[t]o provide adequate
notice as to the nature of multiple claims against multiple defendants, a complaint must
isolate the allegedly unlawful acts of ‘each defendant.’ Otherwise, defendants have no way
of knowing ‘what particular unconstitutional acts they are alleged to have committed.’”
8

Gray, 672 F.3d 909, 921 n. 9.3 The plaintiffs in Gray referred collectively to “Defendants”
or “University Hospital” and did not specify what acts were attributable to which
defendant. Id.
Here, however, the Amended Complaint does isolate the allegedly unlawful acts of
each Defendant, separating each Defendant by count. Plaintiff alleges in Counts Two
through Six that Ray, Harrison, Coburn, Rangel and Plascencia violated Mr. Chrisman’s
Fourth and Fourteenth Amendment rights by using excessive force. Pl.’s Am. Compl.
[Doc. No. 20 at 18-35]. Plaintiff alleges that all defendant detention officers gathered
outside Mr. Chrisman’s cell door. Id. at ¶ 37. Prior to the cell door being opened, one
defendant detention officer told Ray and Harrison not to talk to Mr. Chrisman but to “just
shoot him.” Id. A defendant detention officer standing at the cell door then opened the
door. Id. at ¶ 38. Ray and Harrison fired the pepper balls at Mr. Chrisman and hit him
multiple times. Id. Plaintiff also alleges that the defendant detention officers sprayed
pepper spray in Mr. Chrisman’s face and covered his face with a spit hood. Id. at ¶ 40.
While Mr. Chrisman was handcuffed and shackled and lying face down on the floor, the
defendant detention officers executed knee drops onto Mr. Chrisman’s back. Id.

3
 In DuBois, the court found that the plaintiff’s pleading generally provided sufficient facts

to support a plausible claim that his constitutional rights had been violated by sheriff
deputies, who allegedly denied him medical care while he was in the county jail. However,
the court concluded that dismissal was appropriate because the plaintiff had not alleged
any specific actions by the individual defendants in participating in the constitutional
violations. DuBois, 2014 WL 4810332, at *2.

9

Plaintiff alleges in Count Eight that Coburn, Rangel and Plascencia failed to
intervene to prevent Ray and Harrison from firing pepper balls at Mr. Chrisman. Id. at ¶¶
155-161.

Thus, contrary to Defendants’ contentions, the Amended Complaint does

sufficiently identify the legal basis of Plaintiff’s claims against these officers. See e.g.,
Estate of Booker v. Gomez, 745 F.3d 405, 422 (10th Cir. 2014) (explaining that a law
enforcement official who either “engage[s] in a group effort” to use excessive force or
“‘who fails to intervene to prevent another law enforcement official’s use of excessive
force may be liable under § 1983’” (quoting Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.
1996)); Mascorro v. Billings, 656 F.3d 1198, 1204 n. 5 (10th Cir. 2011) (stating that “an
officer who is present at the scene and who fails to take reasonable steps to protect the
victim of another officer’s use of excessive force, can be held liable [under § 1983] for his
nonfeasance”); see also Harper v. Tirello, Case No. CIV-16-121-CVE-PJC, 2017 WL
6459803, at *6 (N.D. Okla. Dec. 18, 2017).
In Counts 16 through 20, Plaintiff alleges state law battery claims against the
defendant detention officers. Plaintiff alleges that Mr. Chrisman was subjected to physical
contact without his consent during his confinement. Under Oklahoma law, a battery occurs
when the defendant acts with the intent of making a harmful or offensive contact with the
person and the act results in a harmful or offensive contact. Courtney v. Oklahoma ex rel.,
Dep’t of Public Safety, 722 F.3d 1216, 1228 (10th Cir. 2013); OUJI-CIV 19.6. Plaintiff
sufficiently states claims for battery under Oklahoma law. Selby v. Lindstrom, 158 P. 11271128 (Okla. 1916) (where two or more are engaged in assault and battery, each is
individually responsible for all injuries, though specific injury was by one alone; all
10

defendants being present, concerned in the commission of the battery, and directly
committing some act constituting the offense, are joint tort-feasors and may be sued
together); Radford-Shelton and Associates Dental Lab., Inc. v. Saint Francis Hosp., Inc.,
569 P.2d 506, 509 (Okla. Civ. App. 1976) (joint tortfeasors are those who act intentionally
or in concert to injure a third party).
(2)

Plaintiff Has Adequately Alleged Facts that State a Plausible
Claim Against Whetsel in his Individual Capacity for Excessive
Force but not for Deliberate Indifference to Medical Needs
i. Serious Medical Needs

Whetsel contends that the Amended Complaint does not allege his personal
involvement in denying medical care to Mr. Chrisman or that he had the sufficient state of
mind required to establish a constitutional deprivation. Plaintiff’s individual capacity
claims against Whetsel are premised upon a theory of supervisory liability. A plaintiff may
establish § 1983 liability of a defendant-supervisor by demonstrating that “(1) the
defendant promulgated, created, implemented or possessed responsibility for the continued
operation of a policy that (2) caused the complained of constitutional harm, and (3) acted
with the state of mind required to establish the alleged constitutional deprivation.” Dodds
v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). Under the Fourteenth Amendment,
pretrial detainees are “entitled to the same degree of protection against denial of medical
attention which applies to convicted inmates under the Eighth Amendment.” Martinez v.
Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

11

The Court finds Plaintiff has failed to state a claim under the Fourteenth Amendment
against Whetsel for deliberate indifference to serious medical needs. The Amended
Complaint contains no allegations that Whetsel knew of Mr. Chrisman’s need for medical
treatment.4 A necessary element of a deliberate indifference claim is that the defendant
knew of and disregarded an inmate’s need for medical treatment. Sealock v. Colorado,
218 F.3d 1205, 1209 (10th Cir. 2000). At most, the allegations of the Amended Complaint
could be construed to support an inference that some jail personnel should have been aware
of Mr. Chrisman’s mental health and negligently failed to provide him medical treatment.
ii.

Inadequate Training – Excessive Force

However, the Court finds that Plaintiff’s allegations are sufficient to state a valid
constitutional claim for the use of excessive force. A supervisor is liable under § 1983
when “an ‘affirmative link’ exists between the deprivation and either the supervisor’s
‘personal participation, his exercise of control or direction, or his failure to supervise.’”
Specht v. Jensen, 832 F.2d 1516, 1524 (10th Cir. 1987) (quoting McKay v. Hammock, 730
F.2d 1367, 1374 (10th Cir. 1984)). To show that link, Plaintiff must allege (1) personal
involvement; (2) causation; and (3) state of mind. Schneider v. City of Grand Junction
Police Dep’t, 717 F.3d 760 (10th Cir. 2013) (citing Dodds v. Richardson, 614 F.3d 1185,
1195 (10th Cir. 2010)).5

4

Whetsel left the Oklahoma County Sheriff’s Office in March 2017; Chrisman was a
pretrial detainee at the jail April 18-19, 2017.
5

A defendant does not have to be physically present at the time a Fourth Amendment
violation occurs for liability to attach. See Mink v. Knox, 613 F.3d 995, 1001 (10th Cir.
12

Although federal courts appear to uniformly agree that the Supreme Court’s
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009) imposed a stricter liability standard for
personal involvement, the Tenth Circuit has not decided the precise contours of that
standard. Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014). Further, the
Tenth Circuit has not overruled its post-Iqbal decision that Ҥ 1983 allows a plaintiff to
impose liability upon a defendant-supervisor who creates, promulgates, implements, or in
some other way possesses responsibility for the continued operation of a policy the
enforcement (by the defendant-supervisor or her subordinates) of which ‘subjects, or
causes to be subjected’ that plaintiff ‘to the deprivation of any rights … secured by the
Constitution.” Dodds, 614 F.3d at 1199 (quoting 42 U.S.C. § 1983).
The second element requires Plaintiff to show that Whetsel’s alleged actions caused
the constitutional violation by setting “in motion a series of events [he] knew or reasonably
should have known” would cause others to deprive Mr. Chrisman of his constitutional
rights. Poolaw v. Marcantel, 565 F.3d 721, 733 (10th Cir. 2009); Dodds, 614 F.3d at 11951196. Under the third element, Plaintiff must show that Whetsel took the alleged actions
with the requisite state of mind. Exactly what state of mind is required for individual
liability depends on the type of claim a plaintiff brings. Iqbal, 556 U.S. at 676. The
Fourteenth Amendment governs claims of excessive force brought by a pretrial detainee.
Estate of Booker, 745 F.3d at 419. Plaintiff’s excessive force claim against Whetsel is

2010). “Personal involvement does not require direct participation.” Wilson v. Montano,
715 F.3d 847, 858 (10th Cir. 2013) (quoting Dodds, 614 F.3d at 1195). The fact that
Plaintiff has not alleged that Chrisman had any direct contact with Whetsel or that Whetsel
knew of Chrisman’s specific circumstances is of no consequence. Wilson, 715 F.3d at 858.
13

based on Whetsel’s failure to train the S.E.R.T. team in the use of excessive force against
prisoners. In City of Canton v. Harris, the Supreme Court held that “the inadequacy of
police training may serve as the basis for § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons with whom the police come into
contact.” Harris, 489 U.S. 378, 388 (1989). Plaintiff must allege a specific and obvious
deficiency that closely relates to Chrisman’s injury, so that it might fairly be said that
Whetsel’s policy was both deliberately indifferent to Chrisman’s constitutional rights and
the moving force behind his injury. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010).
Plaintiff alleges that Whetsel, as sheriff, created, approved and implemented
policies and procedures that related to the training, hiring, supervision and retention of
detention officers and the use of force on prisoners. Plaintiff further alleges that Whetsel
maintained a S.E.R.T. team at the jail, i.e., a specialized team of detention officers whose
purpose was to respond to problem prisoners. Following the death of Mr. Chrisman,
Plaintiff alleges that Sheriff Taylor publicly admitted the policies and procedures at the
jail, specifically the policy allowing S.E.R.T. team members to self-train, was improper.
This policy was implemented and used by Whetsel and continued by Sheriff Taylor in his
first two months as sheriff.6

6

See e.g., Ireland v. Jefferson County Sheriff’s Dep’t, et al., 193 F. Supp. 2d 1201, 1222
(D. Colo. 2002), where a high school student injured during the Columbine school shooting
by two armed students brought a § 1983 action against both the former sheriff of Jefferson
County and the existing sheriff based on a failure to implement adequate policies or
adequately train the sheriff’s deputies to not violate the student’s constitutional rights. The
district court ultimately found that the former sheriff and the existing sheriff were not the
moving force behind the student’s constitutional deprivation. In Ireland, the former
sheriff’s tenure ended in January 1999. The existing sheriff began his tenure in January
14

Plaintiff states a cause of action against Whetsel by specifically pleading that
Whetsel was the creator of actual polices or customs giving rise to the constitutional
violations suffered by Chrisman, all of which is supported by Sheriff Taylor’s public
statements that many policies which pre-dated his tenure as sheriff were improper and in
need of change. Given the frequency with which the S.E.R.T. team would encounter
problem prisoners and the predictability that they may have to exercise force, Whetsel’s
decision to allow the S.E.R.T. team to self-train could reflect his deliberate indifference to
constitutional rights. Harris, 489 U.S. at 390 and n. 10. Plaintiff has plausibly alleged that
Whetsel’s policy allowing the S.E.R.T. team to self-train set in motion the alleged
excessive force used by the detention officers against Chrisman.
(3)

Plaintiff Has Adequately Alleged Facts that State Plausible
Claims against the Board

Plaintiff has alleged facts sufficient for the Court to conclude that the Board and
Sheriff Taylor had notice, either actual or constructive, that their failure to train the
S.E.R.T. team could likely result in a constitutional violation and that the Board and Sheriff
Taylor consciously chose to disregard the risk of harm. Here, Sheriff Taylor himself
publicly admitted the inadequacy. Moreover, it is likely that if detention officers are selftrained, or not trained, and they have direct contact with problem prisoners, excessive force
could result. See e.g., Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008)

1999. Id. at 1210. The school shooting occurred on April 20, 1999. The Court notes the
propriety of naming both Whetsel and Sheriff Taylor as defendants here, particularly given
Plaintiff’s inadequate training theory, the alleged overlap of the use of the self-trained
S.E.R.T. team by both defendants, and the fact that Sheriff Taylor had just begun his tenure
as sheriff.
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(quoting Bd. of the County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 409
(1997)) (“[A] single violation of federal rights, accompanied by a showing that a
municipality has failed to train its employees to handle recurring situations presenting an
obvious potential for such a violation, could trigger municipal liability.”). The decision
not to train the S.E.R.T. team or to allow them to “self-train,” as alleged, demonstrates a
conscious disregard for a high risk that the team would use excessive force in violation of
a prisoner’s federally protected rights.
To survive dismissal, Plaintiff “must show that [the Board and Taylor] knew
[Chrisman] faced a substantial risk of harm and disregarded that risk, by failing to take
reasonable measures to abate it.” Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009).
The symptoms displayed by the detainee are relevant to this analysis. Id. An obvious risk
could give rise to a factfinder concluding that a prison official subjectively knew of the
substantial risk of harm. Id.
The Board stands in a different position than Whetsel when it comes to Plaintiff’s
claims regarding deprivation of medical attention. Whetsel left the Oklahoma County
Sheriff’s Office in March 2017. Plaintiff alleges that Sheriff Taylor and the Board were
on notice of Mr. Chrisman’s serious medical needs on April 18, 2017. As alleged in the
Amended Complaint, Mr. Chrisman crashed his vehicle into a hospital lobby prior to being
transported to the jail. His symptoms, as alleged, would have been apparent. He was
purportedly experiencing hallucinations, was screaming, and was beating on the walls. Jail
medical personnel noted that he needed to be placed on suicide watch. They were also
aware of the prescription in his possession for Olanzapine, which revealed Mr. Chrisman
16

had been a recent patient at Griffin Memorial Hospital. Further, jail medical personnel
were aware of his previous incarceration in early 2017, when it was recommended he
undergo a mental health evaluation.
Plaintiff also alleges that Mr. Chrisman’s injuries were the direct result of a
widespread practice at the jail of “ignoring and failing to attend to the medical, emotional,
mental and/or psychological needs and/or conditions of [j]ail prisoners.” Pl.’s Am. Compl.
[Doc. No. 20 at ¶ 66(G)]. Those allegations coupled with Plaintiff’s allegations that the
Board deliberately refused to pay the jail’s contracted medical provider, and that Mr.
Chrisman was the twentieth prisoner to die inside the jail since January 2016, state
plausible claims against the Board. See e.g., Revilla v. Glanz, 7 F. Supp. 3d 1207, 1218
(N.D. Okla. 2014).
C.

John Doe Should Be Dismissed as a Defendant

On June 6, 2018, the Court directed Plaintiff to show cause as to why the action
should not be dismissed without prejudice as to Defendant John Doe for failure to effect
service of process within 90 days after filing the Complaint. [Doc. No. 37]. In Plaintiff’s
response to the Show Cause Order, Plaintiff consented to dismissal of Doe without
prejudice. [Doc. No. 38]. Accordingly, Counts 7 and 21 are dismissed without prejudice.
Count 8 is dismissed without prejudice as to Defendant Doe.

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D.

Oklahoma’s Governmental Torts Claim Act Bars Plaintiff’s Negligence
Claims

Plaintiff’s negligence claims against the Board are subject to the Oklahoma
Governmental Tort Claims Act, OKLA. STAT. tit. 51, § 151 et seq. (“OGTCA”). Pursuant
to the OGTCA, the State extended sovereign immunity from tort liability to its political
subdivisions and employees acting within the scope of their employment. OKLA. STAT. tit.
51, § 152.1(A). Citing to OKLA. STAT. tit. 51, § 155(25), the Board asserts that it is entitled
to immunity from Plaintiff’s negligence claims. In pertinent part, the statute provides that
“[t]he state or a political subdivision shall not be liable if a loss or claim results from
provision, equipping, operation or maintenance of any prison, jail or correctional facility.”
Plaintiff’s claims for negligent failure to provide medical care and negligent hiring,
training, supervision and retention are all subject to dismissal pursuant to § 155(25),
because they all result from operation of the Oklahoma County Jail. See Hutto v. Davis,
972 F. Supp. 1372, 1379 (W.D. Okla. 1997) (“Oklahoma law is clear … that a
governmental entity is immune from suit for torts committed in the operation of a jail.”);
Purvey v. State, 905 P.2d 770, 771 (Okla. 1995) (exemption applies to negligence by prison
official in issuing chainsaws to prisoners without proper training); Redding v. State, 882
P.2d 61, 63 (Okla. 1994); Medina v. State, 871 P.2d 1379, 1384 (Okla. 1993) (the
dispensing of medication to an inmate in a state penal institution by a state employee is a
function performed in the operation of the institution and is exempt from tort liability);
Snow v. Bd. of County Comm’rs of the County of McClain, et al., No. CIV-14-911-HE,
2014 WL 7335319, at *3 (W.D. Okla. Dec. 19, 2014) (the plaintiffs conceded that their

18

negligence claims were precluded by § 155(25) and the sovereign immunity doctrine; the
case arose after the death of a jail inmate who was a Type I insulin dependent diabetic who
did not receive insulin or treatment for his diabetes for several days while in the defendants’
custody); Flurry v. Bd. of County Comm’rs of the County of Okla., et al., No. CIV-15-090R, 2015 WL 1542373, at *5 (W.D. Okla. April 7, 2015). Accordingly, Counts 10 through
14 are dismissed with prejudice.7
In Bosh, the Oklahoma Supreme Court recognized a private action for excessive
force under Article II, § 30 of the Oklahoma Constitution, notwithstanding provisions of
the OGTCA barring such claims. Bosh v. Cherokee County Bldg. Auth., 305 P.3d 994,
1001 (Okla. 2013). Plaintiff concedes that she has not specifically pled her claims with a
citation to Article II, § 30. See Pl.’s Resp. [Doc. No. 30 at 26]. As such, she seeks leave
to amend Count 15 of her Amended Complaint. Id. The Court has reviewed the Amended
Complaint and finds that no such claim has been pled. Accordingly, Count 15 is dismissed
without prejudice. Plaintiff is granted leave to file a Second Amended Complaint within
21 days from the date of this Order.
CONCLUSION
For the foregoing reasons, Defendants’ Joint Motion to Dismiss [Doc. No. 23] and
Defendant Colton Ray’s Motion to Dismiss [Doc. No. 26], which Defendant Brian
Harrison adopted [Doc. Nos. 35, 36] are GRANTED in part and DENIED in part.

7

Because Plaintiff’s negligence claims are within the scope of the correctional facility
exemption, it is unnecessary to determine whether the discretionary function exemption of
OKLA. STAT. tit. 51, § 155(5) would also apply.
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Oklahoma County and Sheriff Taylor are terminated as parties to this action. Counts 1 and
9 against Whetsel as to deprivation of medical attention for Chrisman’s serious medical
needs are dismissed without prejudice. Plaintiff’s claim against Whetsel for excessive
force under the theory of inadequate training survives under Counts 1 and 9. Count 7 is
dismissed without prejudice. Count 8 only as to Defendant Doe is dismissed without
prejudice. Counts 10 through 14 are dismissed with prejudice. Count 15 is dismissed
without prejudice, subject to Plaintiff filing a Second Amended Complaint within 21 days
from the date of this Order. Count 21 is dismissed without prejudice.
IT IS SO ORDERED this 7th day of September 2018.

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