Copeland v. Lawton City of et al

Filing 32

ORDER defendant James Smith's partial motion to dismiss and the County defendants' motion to dismiss 17 and 22 are granted and the referenced claims are dismissed; the City's motion to dismiss 13 is granted as to any Bosh claim based on denial of medical care, but is otherwise denied. Signed by Honorable Joe Heaton on 10/26/2018. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LEBRON COPELAND,
Plaintiff,
vs.
THE CITY OF LAWTON, et al.
Defendants.

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NO. CIV-18-558-HE

ORDER
In this case, plaintiff Lebron Copeland asserts federal and state claims against
various defendants arising from his detention in the Lawton City Jail and the Comanche
County Jail. His claims are based on his alleged treatment by the defendants after his arrest
for driving under the influence. He alleges that he was treated with excessive force,
resulting in fractures of three vertebra. He also alleges he was denied proper medical care
while he was in jail.
Defendants have filed multiple motions seeking the dismissal of some of the claims
asserted against them, contending that the complaint fails to state a claim against them.
When considering whether claims should be dismissed under Fed.R.Civ.P. 12(b)(6), the
court accepts all well-pleaded factual allegations of the complaint as true and views them
in the light most favorable to the plaintiff, the nonmoving party. S.E.C. v. Shields, 744 F.3d
633, 640 (10th Cir. 2014). To survive the motion, the complaint must allege “enough facts
to state a claim to relief that is plausible on its face” and “raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In other

words, the facts alleged in the complaint must allow the court to infer the defendant’s
liability. Shields, 744 F.3d at 640 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The Twombly/Iqbal pleading standard “is a middle ground between heightened fact
pleading, which is expressly rejected, and allowing complaints that are no more than labels
and conclusions or a formulaic recitation of the elements of a cause of action, which the
Court stated will not do.” Id. at 640–41 (quoting Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012)).
1. Individual capacity claims against James Smith [Doc. #17].
Defendant Smith is the police chief of the City of Lawton. He contends the state
law negligence claim asserted against him (claim #7) is barred by the Oklahoma
Governmental Tort Claims Act (OGTCA). He also contends a Bosh claim is unavailable
as to him for multiple reasons. Plaintiff concedes that the OGTCA bars his negligence
claim, so defendant’s motion will be granted as to that claim.
As to the Bosh claim, it is not altogether clear whether the claim is directed to a
failure to protect plaintiff from excess force, or from failure to provide adequate medical
care, or both. Defendant contends that Bosh does not extend to any claim based on the
provision of medical care and that, in any event, he cannot be deemed personally liable
based on Bosh.
The court continues to adhere to its view that Bosh does not recognize a private right
of action for all potential violations of the Oklahoma constitution, and that its rationale has
not been extended to claims based on failure to provide adequate medical care. See Hedger
v. Kramer, No. CIV-13-0654-HE, 2013 WL 5873348 at *3 (W.D. Okla. Oct. 30, 2013);
2

see also Foutch v. Turn Key Health, No. 17-CV-431-GKF-JFJ, 2018 WL 1718565 at *2-3
(N.D. Okla. Apr. 9, 2018) (noting the Oklahoma Supreme Court has not extended Bosh to
claims for denial of medical care). More recent Oklahoma authority recognizes that the
rationale of Bosh does not automatically extend to every potential constitutional violation
and no Oklahoma authority has recognized such a claim in the context of medical care. 1
See Perry v. City of Norman, 341 P.3d 689, 691-93 (Okla. 2014). Further, in any event,
the court concludes Bosh, where it applies, does not provide a damages remedy against
every person in the supervisory chain above the employee committing the constitutional
violation. See Koch v. Juber, No. CIV-13-0750-HE, 2014 WL 2171753 at *3 (W.D. Okla.
2013). Rather, Bosh concluded that a remedy is available against the governmental entity
which employed the offending individual. 305 F.3d at 1004. Given the existence of a
claim against the governmental entity, a claim against a supervisor who is not plaintiff’s
employer is outside the “necessity” rationale which undergirds Bosh. As a result, the court
concludes no Bosh claim is stated against Chief Smith regardless of the range of
constitutional violations as to which a private right of action is recognized. The motion
will be granted as to the Bosh claim.
2. Claims against the City of Lawton (Doc. #13).

1

Deal v. Brooks, 389 P.3d 375 (Okla. Civ. App. 2016), relied on by plaintiff, did not involve
the denial of medical care.

3

The City of Lawton has moved to dismiss certain claims against it. 2 It contends the
complaint does not state a constitutional claim for excessive force or denial of adequate
medical care and that no conspiracy claim is stated. It contends the complaint offers only
conclusory allegations and fails to identify the particular employee or employees who
committed the alleged constitutional violation, and that the deficiency is fatal to any claim.
Plaintiff’s response indicates that no conspiracy claim has been asserted here. 3
The City’s motion focuses solely on plaintiff’s inability to establish an underlying
violation of excessive force or denial of medical care, rather than on whether a basis for
municipal liability exists as to any constitutional violation which did occur. It relies on
Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008), arguing that the complaint fails to
identify which particular officers committed the alleged violations. However, in evaluating
the claims here against the city, the circumstances are different from those addressed in
Robbins. Robbins involved claims of qualified immunity by officials and employees who
were sued in their individual capacities. The court noted that such claims “pose a greater
likelihood of failures in notice and plausibility because they typically include complex
claims against multiple defendants.” 519 F.3d at 1249. The need to address the “who”,
“whom” and “what” questions with specificity is less compelling in the circumstances here,

2

The motion also references the official capacity claims against Chief Smith which are, in
substance, claims against the City.
3

Defendant’s motion does not squarely raise the issue of whether a basis for municipal
liability is stated if a constitutional violation by ones of its employees is otherwise shown. Perhaps
that is what the “conspiracy” argument was more or less directed to. However, in any event, no
“conspiracy” claim is asserted.

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where the alleged facts are sufficient to plausibly suggest the existence of a constitutional
violation by city employees and the identity of those particular employees can be
determined in discovery. See generally Roper v. Grayson, 81 F.3d 124, 125 (10th Cir.
1996). The court concludes, as against the specific challenge made by the city’s motion,
that the motion should be denied as to the indicated claims.
3. Claims against the County entities/officials (Doc. #22).
The Comanche County entities have moved to dismiss certain claims. 4 They assert
that no excessive force claim is stated. They contend the OGTCA precludes any negligence
claim against them. They also contend no claim based on Bosh is stated against any of
them. Plaintiff’s response clarifies that no excessive force claim is asserted against the
county defendants and he concedes the OGTCA bars any negligence claim. So the
remaining issue raised by the motion is whether a Bosh claim is stated against these
defendants based on inadequate medical care.
As noted above, the Oklahoma courts have not extended the Bosh rationale to state
constitutional claims based on inadequate medical care. For the reasons previously
articulated by this court, the court declines to extend the Bosh rationale to state
constitutional claims like those asserted here without some clear indication that the
Oklahoma courts would do so. See supra at 3. Therefore, a Bosh claim is not stated as to

4

It is unclear whether plaintiff is asserting claims against Comanche County, which is
suggested by the “official capacity” claims against Sheriff Stradley, or whether his claims are
directed only to the Comanche County Facilities Authority, presumably a separate entity, which
is alleged to operate the county jail.

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any defendant. Further, to the extent that plaintiff seeks to assert a Bosh claim against
Sheriff Stradley personally, such a claim is unavailable for the same reason it is unavailable
as to Chief Smith, and the OGTCA otherwise bars any claim against Sheriff Stradley. 5
Conclusion
Defendant James Smith’s partial motion to dismiss and the County defendants’
motion to dismiss [Doc. Nos. 17, & 22] are GRANTED and the referenced claims are
DISMISSED. The City’s motion to dismiss [Doc. #13] is GRANTED as to any Bosh
claim based on denial of medical care, 6 but is otherwise DENIED.
IT IS SO ORDERED.
Dated this 26th day of October, 2018.

5

The complaint does not suggest any basis for concluding that Sheriff Stradley’s actions
were other than within the scope of his employment as sheriff.
6

The Bosh issue was discussed in the brief of Chief Smith rather than in the City’s brief,
but the argument and disposition as to any claim based on denial of medical care apply equally to
the City.

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