Martinez v. Sequoyah County Criminal Justice Authority

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

FRANCISCA N. MARTINEZ, individually )

and in her official capacity as Personal )

Representative of the Estate of )

JOSIAH C. SAWNEY, deceased; )

et al., )

)

Plaintiffs, )

)

v. ) Case No. CIV-21-84-TDD

)

SEQUOYAH COUNTY CRIMINAL )

JUSTICE AUTHORITY; et al., )

)

Defendants. )

ORDER

Before the Court are five motions to dismiss. The first is a motion filed by

Defendants Sequoyah County Criminal Justice Authority, Sequoyah County Jail, Board of

County Commissioners of Sequoyah County, Larry Lane, Sequoyah County Sheriff, in his

official capacity, and Sequoyah County Sheriff’s Department under Fed. R. Civ. P.

12(b)(1) and (6) [Doc. No. 12]. The second is a motion filed by Defendant Sheriff Larry

Lane, in his individual capacity, under Rule 12(b)(6) [Doc. No. 11]. The third is a motion

filed by Defendant Jason Stone, in his individual capacity, under Rule 12(b)(6) [Doc. No.

10]. The fourth is a motion filed by Defendant Turn Key Health Clinics, LLC under Rules

12(b)(1), (5), and (6) [Doc. No. 17]. The fifth is a motion filed by Defendant Julie Nimal

under Rules 12(b)(1), (5), and (6) [Doc. No. 18].

Plaintiffs filed responses to each motion [Doc. Nos. 28, 23, 26, 22, and 24], and

Defendants filed replies [Doc. Nos. 32, 31, 30, 33, and 34]. These matters are fully briefed

and at issue.

BACKGROUND

Josiah C. Sawney was arrested on the evening of March 20, 2019. Police brought

him to the Sequoyah County Jail in Sallisaw, Oklahoma. While he was being booked into

the jail, Mr. Sawney indicated he was experiencing suicidal thoughts, so he was placed in

an observation cell for suicide watch. The following morning, Mr. Sawney became agitated

and jail staff decided to place him in a restraint chair.

Turn Key was hired by Sequoyah County to provide medical care to detainees at the

jail. Plaintiffs allege that Julie Nimal, a Turn Key employee, was the nurse on duty at the

jail during Mr. Sawney’s detainment. Plaintiffs further allege Mr. Sawney refused to take

a drug test and told Nimal that he had recently consumed an energy drink. While in the

restraint chair, Mr. Sawney became unconscious. Jail staff then called for an ambulance,

and Mr. Sawney was transferred to a local hospital, where he died of methamphetamine

toxicity. Hospital staff found a plastic bag containing methamphetamine in the contents of

his stomach.

Plaintiff Francisca Martinez, in her individual capacity and in her capacity as

personal representative of Mr. Sawney’s estate, along with Mr. Sawney’s children, Josiah

Sawney, Angelo Sawney, Frankie Sawney, and Logan Sawney, sued multiple defendants,

including ten unnamed defendants, alleging violations of Mr. Sawney’s rights under the

United States Constitution and under state law. They brought claims for excessive force,

denial of adequate medical care, and racial discrimination under 42 U.S.C. § 1983, and

they brought state law claims for wrongful death and negligence.

STANDARD OF DECISION

I. Rule 12(b)(1)

Standing is a threshold requirement in every federal case. Bd. of Cnty. Comm'rs of

Sweetwater Cnty. v. Geringer, 297 F.3d 1108, 1111 (10th Cir. 2002). A Rule 12(b)(1)

motion to dismiss for lack of subject matter jurisdiction takes one of two forms: a facial

attack or a factual attack. Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th

Cir. 2015). A facial attack questions the sufficiency of the complaint's allegations. Id. In

reviewing a facial attack, a district court must accept the allegations in the complaint as

true. Id. Federal courts are courts of limited jurisdiction; they can exercise jurisdiction only

when specifically authorized to do so. Castenda v. INS, 23 F.3d 1576, 1580 (10th Cir.

1994).

II. Rule 12(b)(5)

A motion under Fed. R. Civ. P. 12(b)(5) challenges the “mode of delivery or the

lack of delivery of the summons and complaint.” Craig v. City of Hobart, No. CIV-09-

0053-C, 2010 WL 680857, at *1 (W.D. Okla. Feb. 24, 2010). Once a defendant makes a

Rule 12(b)(5) motion, “plaintiffs bear the burden of demonstrating that they complied with

all statutory and due process requirements.” Id. “‘The parties may submit affidavits and

other documentary evidence for the Court's consideration, and plaintiff is entitled to the

benefit of any factual doubt.’” Id. (citation omitted).

III. Rule 12(b)(6)

“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.” Id. In evaluating the complaint, the Court

first disregards conclusory allegations and “next consider[s] 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.” Id. at

679. In § 1983 cases, it is particularly important “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).

DISCUSSION

I. The Court lacks personal jurisdiction over Defendants Turn Key Health

Clinics, LLC and Julie Nimal because no summons were issued in this

matter.

Rule 4(c)(1) provides that “[a] summons must be served with a copy of the

complaint. The plaintiff is responsible for having the summons and complaint served

within the time allowed by Rule 4(m) and must furnish the necessary copies to the person

who makes service.” Even when a defendant, otherwise, would be subject to the court’s

jurisdiction, service of summons is a procedural prerequisite for a federal court to exercise

personal jurisdiction. Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).

“Service of summons is the procedure by which a court having venue and jurisdiction of

the subject matter of the suit asserts jurisdiction over the person of the party served.” Id.

(alterations omitted). “Unless a named defendant agrees to waive service, the summons

continues to function as the sine qua non directing an individual or entity to participate in

a civil action or forgo procedural or substantive rights.” Murphy Bros. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 351 (1999).

The clerk of court issued no summons in this matter. Defendants Turn Key and

Nimal argue that Plaintiff’s failure to serve summons with the complaint precludes the

Court from exercising personal jurisdiction over them. Since Defendants moved to dismiss

for insufficient process under Rule 12(b)(5), it is plaintiffs’ burden to demonstrate that they

complied with all statutory and due process requirements. Plaintiffs offer no explanation

or argument that would excuse their failure to serve summons upon these defendants.

Therefore, they have not carried their burden, and the Court finds that it lacks personal

jurisdiction over Defendants Turn Key and Nimal.1

II. Only Francisca Martinez, in her capacity as personal representative of Mr.

Sawney’s estate, has standing to bring the § 1983 claims in the First

Amended Complaint.

A § 1983 action is a personal suit; “[i]t does not accrue to a relative.” Dohaish v.

Tooley, 670 F.2d 934, 936 (10th Cir. 1982). The federal remedy applied in a § 1983 case

arising out of a person’s death is a “survival action, brought by the estate of the deceased

victim” because “liability is ‘to the party injured.’” Berry v. City of Muskogee, 900 F.2d

1489, 1506–07 (10th Cir. 1990) (quoting 42 U.S.C. § 1983).

Therefore, the only plaintiff who may bring a § 1983 claim in this matter is Francisca

Martinez, in her capacity as personal representative of Mr. Sawney’s estate. The Court

finds that Ms. Martinez, in her individual capacity, Josiah J. Sawney, Angelo Sawney,

Frankie Sawney, and Logan Sawney lack standing to bring the § 1983 claims in the First

Amended Complaint. The § 1983 claims of these plaintiffs are, therefore, dismissed.

The Court will proceed to analyze the § 1983 claims brought by Francisca Martinez,

in her capacity as personal representative of Mr. Sawney’s estate.

1 Summons were not issued for the claims against any other defendant in this matter. But only

Turn Key and Nimal raised the issue of insufficient process. Therefore, all other defendants have

waived this defense under Rule 12(h).

III. Plaintiff’s § 1983 claims against Defendants Sequoyah County Jail and

Sequoyah County Sheriff’s Department should be dismissed because they

are not proper defendants for these claims.

A noncorporate entity’s capacity to be sued is determined by the law of the state in

which the district court is located. Fed. R. Civ. P. 17(b)(3). In Oklahoma, each organized

county can sue and be sued. OKLA. STAT. tit. 19, § 1(1). The authority of each county is

exercised by its board of county commissioners, and a lawsuit brought against a county

must be filed against the board of county commissioners of the relevant county. OKLA.

STAT. tit. 19, §§ 3, 4.

Because the Sequoyah County Jail and the Sequoyah County Sheriff’s Department

do not have legal identities separate from that of Sequoyah County, they are not suable

entities and are not proper defendants in a civil rights action. See Lindsey v. Thomson, 275

Fed. Appx. 744, 747 (10th Cir. 2007) (unpublished) (affirming dismissal of § 1983 claims

against police departments and a county sheriff’s department, noting that defendants were

“not legally suable entities”); Reid v. Hamby, No. 95-7142, 1997 WL 537909, at *6 (10th

Cir. 1997) (unpublished) (holding that “an Oklahoma ‘sheriff’s department’ is not a proper

entity for purposes of a § 1983 action”); Aston v. Cunningham, No. 99-4156, 2000 WL

796086, at *4 n.3 (10th Cir. June 21, 2000) (unpublished) (affirming dismissal of a county

detention facility on the basis that “a detention facility is not a person or legally created

entity capable of being sued”).

Accordingly, Plaintiff’s claims against the Sequoyah County Jail and the Sequoyah

County Sheriff’s Department should be dismissed with prejudice for failure to state a claim

upon which relief can be granted.

IV. Plaintiff’s § 1983 claims against Defendant Board of County

Commissioners of Sequoyah County should be dismissed because they are

duplicative.

Defendants argue that since Plaintiff asserted § 1983 claims against Sheriff Lane, in

his official capacity, to establish municipal liability, claims against the Board of

Commissioners are duplicative and unnecessary. The Court agrees.

To establish municipal liability for the actions of a municipal official in a § 1983

action, a plaintiff must show the “official possesses final policymaking authority to

establish municipal policy with respect to acts in question.” Houston v. Reich, 932 F.2d

883, 887 (10th Cir.1991) (citing Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)). “Put

another way, for a local government unit such as the Board to be liable for violating § 1983,

that unit's allegedly unconstitutional act (or the act of the defendant in his or her official

capacity) must execute ‘a government's policy or custom.’” Jantzen v. Hawkins, 188 F.3d

1247, 1259 (10th Cir. 1999) (quoting Monell v. Dep't of Social Services, 436 U.S. 658, 694

(1978)).

Under Oklahoma law, a sheriff is the final policymaker “responsible for the proper

management of the jail in his county and the conduct of his deputies.” Meade v. Grubbs,

841 F.2d 1512, 1528 (10th Cir. 1988). The only way the Board could be held liable for

Plaintiff’s § 1983 claims is if there were a direct causal link between its actions and the

alleged deprivation of Mr. Sawney’s rights. See Barney v. Pulsipher, 143 F.3d 1299, 1307

(10th Cir. 1998).

Plaintiff does not allege that the Board was involved in the operation of the jail or

that the Board undertook responsibility for hiring or supervising jail staff. “[A]ctions for

alleged failure to properly manage a jail and/or jail staff should be brought against the

sheriff of the county rather than the board.” Bowens v. Bd. of Cnty. Commissioners, No.

CIV-19-314-C, 2020 WL 2892670, at *2 (W.D. Okla. June 2, 2020). The claims against

Defendant Board are thus duplicative, and the Court finds that Plaintiff’s § 1983 claims

against the Board should be dismissed.

V. The First Amended Complaint lacks sufficient factual allegations to state §

1983 claims for which relief may be granted.

Defendants argue that Plaintiff’s § 1983 claims for excessive force, denial of

adequate medical care, and racial discrimination should be dismissed. First, they argue that

Plaintiff’s First Amended Complaint does not set forth plausible § 1983 claims for

individual liability against any Defendant. Second, they argue that since Plaintiff failed to

sufficiently plead § 1983 claims for individual liability, she, consequently, failed to plead

a plausible claim for municipal liability.

“Because § 1983 . . . [is a] vehicle[] for imposing personal liability on government

officials, [the Tenth Circuit] ha[s] stressed the need for careful attention to particulars,

especially in lawsuits involving multiple defendants.” Pahls v. Thomas, 718 F.3d 1210,

1225 (10th Cir. 2013). “[I]t is incumbent upon a plaintiff to ‘identify specific actions taken

by particular defendants’ in order to make out a viable § 1983 . . . claim.” Id. at 1226

(emphasis in original). “The same particularized approach applies with full force when a

plaintiff proceeds under a theory of supervisory liability.” Id. A plaintiff “must . . . identify

the specific policies over which particular defendants possessed responsibility and that led

to the alleged constitutional violation.” Id.

A. Individual Liability

Title 42 U.S.C. § 1983 provides that “every person” acting “under the color of law”

to deprive an individual of their “rights, privileges, or immunities secured by the

Constitution and laws,” shall be liable to the person injured. Plaintiff brings three § 1983

claims against Lane and Stone, in their individual capacities: (1) excessive force, (2) denial

of adequate medical care, and (3) racial discrimination.2 Defendants argue that Plaintiff

failed to assert sufficient factual allegations to support plausible § 1983 claims.

1. Excessive Force

The Fourteenth Amendment's Due Process Clause governs claims

of excessive force brought by a pretrial detainee. To succeed on an excessive force claim

under the Fourteenth Amendment, “a pretrial detainee must show only that the force

purposely or knowingly used against him was objectively unreasonable.” Kingsley v.

Hendrickson, 576 U.S. 389, 396–97 (2015). Whether a defendant's actions were objectively

unreasonable “turns on the ‘facts and circumstances of each particular

case.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Plaintiff must allege

facts tending to show that officers acted maliciously with the intent to harm Mr. Sawney.

See Whitley v. Albers, 475 U.S. 312, 320–321 (1986).

Here, Plaintiff does not allege who participated in the force against Mr. Sawney. It

is also unclear from the First Amended Complaint what particular use of force Plaintiff

alleges was excessive. Without specific factual allegations covering these basic facts, the

2 Plaintiff also joins Defendant Nimal in her denial of medical care claim. The Court finds that

even if it had personal jurisdiction over Nimal, it would have to dismiss the § 1983 claims against

her for failure to state a claim for which relief may be granted.

Court cannot draw a reasonable inference that any individual acted in an objectively

unreasonable manner with the malicious intent to harm Mr. Sawney.

2. Denial of Adequate Medical Care

The Fourteenth Amendment's Due Process Clause affords a pretrial detainee

protection against deliberate indifference to a substantial risk of serious harm. See Bell v.

Wolfish, 441 U.S. 520, 535 n.16 (1979); Burke v. Regalado, 935 F.3d 960, 991–92 (10th

Cir. 2019); Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 2018). The “[d]eliberate

indifference [standard] has objective and subjective components.” Callahan v. Poppell,

471 F.3d 1155, 1159 (10th Cir. 2006). The objective component is met if the “harm

suffered rises to a level ‘sufficiently serious’ to be cognizable under the Cruel and Unusual

Punishment Clause.” Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005) (quoting Farmer v.

Brennan, 511 U.S. 825, 834 (1994)).

To satisfy the subjective component, Plaintiff must show the official “knows of and

disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,

837 (1994). The official “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.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006). “The question is: ‘were the

symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly)

to disregard it?’” Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009) (quoting Mata,

427 F.3d at 753).

Here, Plaintiff’s allegations are sufficient to meet the objective component because

death is sufficiently serious to implicate the Fourteenth Amendment. See Martinez, 563

F.3d at 1088. Plaintiff, however, failed to set forth factual allegations that, if taken as true,

demonstrate that any jail official or employee or any Turn Key employee, including Nimal,

was subjectively aware of the health risks Mr. Sawney faced. Plaintiff alleges Mr. Sawney

told Nimal he recently consumed an energy drink and that Mr. Sawney refused to take a

drug test. But Plaintiff does not allege that any individual knew Mr. Sawney ingested the

plastic bag containing methamphetamine. The only symptoms Plaintiff alleges Mr. Sawney

presented were that he displayed “altered mental status and was becoming agitated” and

that he “appeared to sleep” while he was in the restraint chair. [Doc. No. 4 at p. 6, ¶ 12].

The few factual allegations asserted by Plaintiff, without more, are insufficient to allow for

a reasonable inference that any individual at the jail knew of, and disregarded, the risk to

Mr. Sawney’s health. Plaintiff has thus failed to meet the subjective component of the

deliberate indifference standard.

3. Racial Discrimination

The “Constitution prohibits selective enforcement of the law based on

considerations such as race.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1263 (10th

Cir. 2006) (quoting Whren v. United States, 517 U.S. 806 (1996)). “In order to state a claim

based on the Equal Protection Clause, plaintiff must sufficiently allege that defendants

were motivated by racial animus.” Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1269

(10th Cir. 1989).

Here, Plaintiff does not allege that either Sherriff Lane or Stone personally

participated in the alleged racial discrimination. Although Plaintiff alleges that Mr. Sawney

was pulled over by police for having a Native American bead necklace on his rear-view

mirror and that the Sequoyah County Sherriff’s Office has a history of racially profiling

Native Americans, Plaintiff never alleges that Mr. Sawney was Native American. Further,

Plaintiff does not allege any discriminatory purpose or racial animus that motivated the

traffic stop or the force used against Mr. Sawney. These deficiencies preclude a reasonable

inference that any individual racially discriminated against Mr. Sawney. Plaintiff has failed

to state a racial discrimination claim.

Plaintiff has failed to “make clear exactly who is alleged to have done what to

whom.” See Robbins, 519 F.3d at 1249–50. She has failed to plead sufficient facts to show

Defendants violated Mr. Sawney’s statutory or constitutional rights. Her § 1983 claims for

individual liability against Defendants Stone and Lane, therefore, must be dismissed.

Further, her § 1983 claims for supervisory liability against Sherriff Lane must also be

dismissed. Doe v. Woodard, 912 F.3d 1278, 1290 (10th Cir. 2019) (“Supervisors cannot be

liable under § 1983 where there is no underlying violation of a constitutional right by a

supervisee.”).

Based upon the deficiencies in the First Amended Complaint, the Court also

concludes Plaintiff has failed to state plausible § 1983 claims for relief against the unnamed

defendants in their individual capacities. Therefore, the Court finds the § 1983 claims for

individual liability against John and Jane Does I through X should be dismissed.

Since the Court finds Plaintiff has failed to state a valid claim showing a deprivation

of Mr. Sawney’s constitutional rights, the Court need not reach the issue of qualified

immunity. Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995).

B. Municipal Liability

The Sequoyah County Defendants argue that Plaintiff’s claims of excessive force,

denial of adequate medical care, and racial discrimination and profiling against the

Criminal Justice Authority and Sheriff Lane, in his official capacity, should also be

dismissed.3

Under § 1983, municipalities can be subject to liability if a municipal “policy or

custom” caused an underlying constitutional violation. See Monell v. Dep't of Soc. Servs.,

436 U.S. 658, 690–94 (1978). However, “[a] municipality may not be held liable where

there was no underlying constitutional violation by any of its officers.” Hinton v. City of

Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). In order for a plaintiff to establish a §

1983 claim for municipal liability she must establish (1) the existence of a municipal policy

or custom; and (2) a direct causal connection between the policy or custom and the injury

alleged. City of Canton v. Harris, 489 U.S. 378, 385 (1989).

But here, since the Court has found that Plaintiff’s First Amended Complaint fails

to plausibly plead deprivations of Mr. Sawney’s constitutional rights by any individual, the

Court must, necessarily, find that Plaintiff’s § 1983 municipal liability claims fail. Because

Plaintiff has failed to plausibly plead a violation of Mr. Sawney’s constitutional rights by

individual officers, the Court cannot hold the Sequoyah County Defendants liable for any

alleged policy or custom related to a purported violation.

3 Plaintiff also asserted claims for municipal liability against Defendant Turn Key. The Court finds

that even if it had personal jurisdiction over Turn Key, it would have to dismiss the § 1983 claims

against it for failure to state a claim for which relief may be granted.

Based upon the deficiencies in the First Amended Complaint, the Court also

concludes Plaintiff has failed to state plausible § 1983 claims for relief against the unnamed

defendants in their official capacities. Therefore, the Court finds the § 1983 claims for

municipal or supervisory liability against John and Jane Does I through X should be

dismissed. Thus, the Court must dismiss all of Plaintiff’s § 1983 claims.

VI. Since all federal claims in this matter are dismissed, the Court declines to

exercise supplemental jurisdiction over the state law claims.

Beyond the § 1983 claims, Plaintiffs bring claims for negligence and wrongful death

under Oklahoma law against Defendants. Since all federal claims must be dismissed, the

Court declines to exercise supplemental jurisdiction over the remaining state law claims.4

Thus, the Court dismisses the state law claims without prejudice. See Barnett v. Hall, Estill,

Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1232 (10th Cir. 2020) (noting

the “regular practice in this circuit of dismissing without prejudice state-law claims for

which the district court has only supplemental, rather than original, jurisdiction when the

federal-law claims to which they are supplemental are dismissed early in the litigation”);

Tonkovich v. Kansas Bd. of Regents, Univ. of Kansas, 254 F.3d 941, 945 (10th Cir. 2001)

(stating that 28 U.S.C. § 1367 grants the court discretion to dismiss supplemental state law

claims when the court dismisses the federal claims over which it had original jurisdiction).

4 All defendants in this matter are citizens of Oklahoma. According to an order issued by the

Oklahoma District Court for Adair County (attached to the original complaint and referenced in

the First Amended Complaint as “exhibit A”), Mr. Sawney was a resident of Adair County,

Oklahoma at the time of his death. Under 28 U.S.C. § 1332(c)(2), the legal representative of a

decedent’s estate is deemed a citizen of the same state as the decedent. All parties are thus citizens

of Oklahoma. Therefore, there is no basis for diversity jurisdiction in this matter.

As such, the Court does not address the parties’ arguments related to the Oklahoma

Governmental Tort Claims Act or to any state law immunity.

Although the Court makes no determination on the merits of Plaintiffs’ state law

claims, it must address inaccurate arguments made by Plaintiffs’ counsel. Plaintiffs’

counsel represented to the Court that the Oklahoma Supreme Court has vacated Salazar v.

City of Oklahoma City, 976 P.2d 1056 (Okla. 1999) and has overruled Gibson v. Copeland,

13 P.3d 989 (Okla. Civ. App. 2000). Counsel supported neither contention with a citation

to authority, probably because none exists. The Oklahoma Supreme Court has not vacated

Salazar and it has never cited Gibson in a published decision. Plaintiff counsel’s

representations that these cases no longer remain good law are, as counsel would say,

“misguided at best,” and perhaps much worse. 5

VII. Leave to Amend

The Court finds that Plaintiff’s action against Defendants should be dismissed.

Although Plaintiff requested leave to further amend the First Amended Complaint as an

alternative form of relief in her response briefs, Plaintiff has not requested, by motion,

leave to amend the complaint. “Such cursory requests for leave to amend are insufficient.”

Bangerter v. Roach, 467 F. App'x 787, 789 (10th Cir. 2012) (unpublished) (citing Garman

v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010)); see also Glenn v.

First Nat'l Bank in Grand Junction, 868 F.2d 368, 370 (10th Cir. 1989). The Court finds

5 Under Fed. R. Civ. P. 11(b), legal contentions must be “warranted by existing law or by a

nonfrivolous argument for” a change in law.

that Plaintiffs need not be granted leave to further amend the First Amended Complaint at

this time.6

CONCLUSION

For the foregoing reasons, the motions to dismiss [Doc. Nos. 10, 11, 12, 17, and 18]

are GRANTED. A judgment shall be entered in favor of Defendants and against Plaintiffs.

IT IS THEREFORE ORDERED that the claims against Defendants Turn Key

Health Clinics, LLC and Julie Nimal are DISMISSED WITHOUT PREJUDICE for lack

of personal jurisdiction.

IT IS FURTHER ORDERED that § 1983 claims asserted by Plaintiffs Francisca

Martinez, in her individual capacity, Josiah J. Sawney, Angelo Sawney, Frankie Sawney,

and Logan Sawney are DISMISSED for lack of standing.

IT IS FURTHER ORDERED that the § 1983 claims asserted against Defendants

Sequoyah County Jail and Sequoyah County Sherriff’s Department are DISMISSED

because they are improper defendants for Plaintiff’s 1983 claims.

IT IS FURTHER ORDERED that the § 1983 claims asserted against Defendant

Board of County Commissioners of Sequoyah County are DISMISSED because the claims

are duplicative.

6 “Where a plaintiff does not move for permission to amend the complaint, the district court

commits no error by not granting such leave.” Burnett v. Mortg. Elec. Regis. Sys., Inc., 706 F.3d

1231, 1238 n.4 (10th Cir. 2013). A district court may properly require a plaintiff to file a motion

that complies with Fed. R. Civ. P. 15(a) and LCvR15.1 before considering whether to allow an

amendment. See Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1283 (10th Cir. 2021); see

also Hall v. Witteman, 584 F.3d 859, 868 (10th Cir. 2009) (finding that plaintiff “must give

adequate notice to the district court and to the opposing party of the basis of the proposed

amendment”).

IT IS FURTHER ORDERED that Plaintiffs § 1983 claims against all Defendants

are DISMISSED WITHOUT PREJUDICE for failure to state a claim for which relief

may be granted.

IT IS FURTHER ORDERED that the Court declines to exercise supplemental

jurisdiction over Plaintiffs’ state law claims for negligence and wrongful death; they are

DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED this 3" day of January, 2022.

Nil Oy akc

TIMOTHY D. DEGIUSTI

UNITED STATES DISTRICT JUDGE

18