# Harding v. Grisham

> District Court, E.D. Oklahoma · October 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10385560

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** October 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10385560

## How later opinions describe it (automated extraction)

- noting that when claiming an injury related to an arrest, the arrest must be unlawful, “for being lawfully arrested is not a cognizable harm.”
- stating that in enacting the OGTCA, the Oklahoma Legislature “has specifically abrogated any previously existing common law or statutory right of recovery for torts committed by a governmental entity or its employees while acting within the scope of their employment.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
KENNETH ALLEN HARDING

Plaintiff,
v. Case No. 22-CV-22-JFH

WILLIAM L. GRISHAM, in his official
capacity as Sheriff of Love County, a
political subdivision of the State of
Oklahoma, et al.,

Defendants.

OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss Plaintiff’s Complaint (“Motion
to Dismiss”) filed jointly by Defendant William L. Grisham (“Defendant Grisham”), Defendant
Jeff Mullinax (“Defendant Mullinax”), and Defendant Love County (“Defendant County”)
(collectively, “Defendants”). Dkt. No. 11. Defendants ask the Court to dismiss Plaintiff Kenneth
Allen Harding’s (“Plaintiff”) claims against Defendants for failure to state a claim upon which
relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Id. at 2. Plaintiff opposes
Defendants’ Motion to Dismiss. Dkt. Nos. 16, 19. For the reasons set forth below, Defendants’
Motion to Dismiss [Dkt. No. 11] is GRANTED.
STANDARD
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine
whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its
face” and the factual allegations “must be enough to raise a right to relief above the speculative
level.” Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 562. For the
purpose of making the dismissal determination, a court must accept all the well-pleaded allegations
of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most

favorable to a claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,
1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir.
2002). However, a court need not accept as true those allegations that are conclusory in nature.
Erikson v. Pawnee Cnty. Bd. of Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001).
"[C]onclusory allegations without supporting factual averments are insufficient to state a claim
upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).
“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Id. at 1110. While Plaintiff is presently pro
se, Plaintiff was represented by counsel at the time of filing his Complaint.1 Therefore, the liberal

construction and less stringent standard will not be applied to the Court’s review of the Plaintiff’s
Complaint under Fed. R. Civ. P. 12(b)(6).
FACTUAL BACKGROUND
Taking Plaintiff’s allegations as true and construing them in the light most favorable to
Plaintiff, as it must at this stage, the Court briefly recounts the allegations. On or about June 25,
2020 at approximately 11:45 p.m., while Plaintiff was driving a commercial vehicle on Interstate
35 in Love County, Oklahoma, Love County Sheriff’s Deputy, Jeff Mullinax, conducted a traffic

1 Plaintiff’s Petition will be referred to in this Order as a “Complaint” to comport with federal
terminology.
stop on Plaintiff’s vehicle. Dkt. No. 2-2 at 4. During the traffic stop, Defendant Mullinax
determined that Plaintiff’s commercial driver’s license (“CDL”) issued by the State of Texas had
expired. Id. At that time, Plaintiff advised Defendant Mullinax that, due to the Covid-19
pandemic, the expiration of commercial driver’s licenses had been administratively extended. Id.
Defendant Mullinax did not accept Plaintiff’s statement as true, or independently verify that

Plaintiff’s CDL was valid by an administrative extension. Id. Plaintiff was arrested and booked
into the Love County Jail on charges of driving without a license and improper lane use.2 Dkt.
No. 2-2 at 4.
Following the booking process, Plaintiff was required to undergo a delousing treatment.
Id. at 5. At that time, Plaintiff informed Love County Jail staff that he had been diagnosed with
gastroenteritis and that he was currently taking a prescription antibiotic for treatment. Id. Because
Plaintiff was unable to secure a bail bondsman, he was held in the Love County Jail overnight. Id.
Plaintiff was not provided access to his prescription antibiotic while in custody overnight. Dkt.
No. 2-2 at 5.

The next day, Plaintiff was arraigned in Love County District Court. Id. At the
arraignment, the driving without a license charge was dismissed and Plaintiff pled not guilty to the
improper lane use charge. Id. Plaintiff was released several hours after being arraigned. Id.
Because he did not have access to his prescription antibiotic while in the Love County Jail, Plaintiff
had to seek additional medical treatment for his gastroenteritis following his release. Dkt. No. 2-
2 at 5.

2 Plaintiff refers to the improper lane use charge as an “improper lane change” charge in his
Response. See e.g., Dkt. No. 56 at 7. However, the Court takes judicial notice under Federal Rule
of Evidence 201 that Plaintiff was charged with improper lane use, in violation of 47 O.S. § 11-
309(5). See Love County District Court, Case No. TR-2020-918.
AUTHORITY AND ANALYSIS
I. Claims Against Individual Defendants

A. Defendant Grisham and Defendant Mullinax in their Official Capacities
Plaintiff asserts all claims against Defendant Grisham and Defendant Mullinax in their
official capacities as Love County Sheriff and Love County Deputy Sheriff, respectively. Dkt.
No. 2-2 at 2-8. However, asserting claims against Defendant Grisham and Defendant Mullinax in
their official capacities is “essentially another way of pleading an action against the county or
municipality [they] represent.” Porro v, Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (citing
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.55 (1978)). Because
Plaintiff has asserted identical claims against Defendant County, his claims against Defendant
Grisham and Defendant Mullinax in their official capacities are subsumed within the claims
against Defendant County. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citations omitted)
(“There is no longer a need to bring official-capacity actions against local government officials,
for under Monell, local government units can be sued directly for damages and injunctive or
declaratory relief.”); see also London v. Hill, No. 11-CV-028, 2012 WL 529934, at *4 (N.D. Okla.
Feb. 13, 2012) (internal citations omitted) (“[W]here a local governmental entity is sued along
with an official of that entity in his or her official capacity, the official capacity claims are
subsumed within the claims against the government entity and, therefore, the official capacity

claims against individual defendants are properly dismissed as redundant.”)). Therefore,
Plaintiff’s claims against Defendant Grisham and Defendant Mullinax in their official capacities
are redundant and should be dismissed.
Oklahoma law is in accord. A "[s]uit against a government officer in his or her official
capacity is [considered] a suit against the entity that the officer represents" and "is improper under
the [Oklahoma Governmental Tort Claims Act (“OGTCA”), 51 O.S. §§ 151, et. seq.]" Speight v.
Presley, 203 P.3d 173, 179 (Okla. 2008); accord Pellegrino v. State ex rel. Cameron Univ., 63
P.3d 535, 537 (Okla. 2003). The OGTCA requires that a suit brought pursuant to its provisions
"name as defendant the state or political subdivision against which liability is sought to be
established" and specifically prohibits naming as a defendant an employee acting within the scope
of his or her employment. See 51 O.S. § 163(C).

For these reasons, the Court dismisses all claims asserted by Plaintiff against Defendant
Grisham and Defendant Mullinax in their official capacities. As amendment would be futile, the
official capacity claims against Defendant Grisham and Defendant Mullinax are dismissed with
prejudice.
B. Defendant Mullinax in his Individual Capacity
Plaintiff also asserts all claims against Defendant Mullinax in his individual capacity. Dkt.
No. 2-2 at 2-8.3 Plaintiff alleges that Defendant Mullinax unlawfully arrested and detained
Plaintiff for driving without a license, a crime which he urges did not occur. Id. Defendants argue
that Defendant Mullinax is entitled to qualified immunity and that, further, Plaintiff was lawfully
arrested and detained on an improper lane use charge. Dkt. No. 11 at 5, 7.

The defense of qualified immunity shields government officials performing discretionary
functions from liability for civil damages arising from claims brought against them in their
individual capacities. McFall v. Bednar, 407 F.3d 1081, 1087 (10th Cir. 2005). In establishing
the defense of qualified immunity, the Supreme Court has attempted to balance the protection of
civil rights and "the need to protect officials who are required to exercise their discretion and the
related public interest in encouraging the vigorous exercise of official authority." Trask v. Franco,
446 F.3d 1036, 1043 (10th Cir. 2006) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)).

3 The Court notes that Plaintiff does not assert any claims against Defendant Grisham in his
individual capacity.
Individual government actors retain their immunity unless the plaintiff can show that they violated
"clearly established statutory or constitutional rights of which a reasonable person would have
known." Id. (quoting Harlow, 457 U.S. at 818).
Plaintiff alleges that he was unlawfully arrested and detained on the driving without a
license charge because, due to an administrative extension, his expired license was still valid at

the time of his arrest. Dkt. No. 2-2 at 4. Plaintiff urges that while Defendant Mullinax was unaware
of this administrative extension, he could have, and should have, verified the administrate
extension either on his phone or by using his squad car computer prior to arresting Plaintiff. Id.
Tenth Circuit law is clear that “[a]n arrest must be based on probable cause to believe that
a person committed a crime . . . .” Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007).
"Probable cause exists where the facts and circumstances known to the officer at the time of arrest,
and of which the officer had reasonably trustworthy information, were sufficient to warrant a
prudent person in believing defendant had committed or was committing a criminal offense."
United States v. Rodriguez, 739 F.3d 481, 485 n.2 (10th Cir. 2013). “Though officers may not

ignore evidence that would dissipate probable cause, not all new evidence does so. For instance,
a soon-to-be arrestee's bare proclamations of innocence do not.” Hinkle v. Beckham Cty. Bd. of
Cty. Comm’rs, 962 F.3d 1204, 1221 (10th Cir. 2020) (internal citations omitted).
While Plaintiff attempts to make a claim of unlawful arrest, his allegations do not contain
enough “facts to state a claim to relief that is plausible on its face” and are not enough to “raise a
right to relief above the speculative level.” See Twombly, 550 U.S. at 555. Specifically, Plaintiff
has not demonstrated that Defendant Mullinax lacked probable cause for his arrest. The facts and
circumstances known to Defendant Mullinax at the time of the arrest, as alleged by Plaintiff, justify
a finding of probable cause to believe that Plaintiff committed an arrestable offense. Plaintiff
acknowledges that Defendant Mullinax, a Deputy Sheriff in the State of Oklahoma, was unaware
of any administrative extension that would have rendered Plaintiff’s expired license valid. Dkt.
No. 2-2 at 4. Despite Plaintiff’s urging of his innocence and his requests for Defendant Mullinax
to verify this extension, the law does not require Defendant Mullinax to “forego arrest pending
further investigation if the facts as initially discovered provide probable cause.” Hinkle, 962 F.3d

at 1221 (quoting Romero v. Fay, 45 F.3d 1472, 1480, n.6 (10th Cir. 1995)). The facts as initially
discovered—i.e., Plaintiff’s expired driver’s license—provided probable cause that Plaintiff was
driving without a valid license in violation of Oklahoma law.
Additionally, regarding the state law claims, Defendant Mullinax is entitled to immunity
under the provisions of the OGTCA. See 51 O.S. § 152.1(A). The statute explicitly states that
“employees acting within the scope of their employment, whether performing governmental or
proprietary functions, shall be immune from liability for torts.” Id. Plaintiff does not allege that
Defendant Mullinax acted in bad faith, nor does Plaintiff allege that Defendant Mullinax acted
outside the scope of his duties at the time of Plaintiff’s arrest. See Dkt. No. 2-2 at 3 (stating that

Plaintiff was injured and wronged by Defendant Mullinax while he was “acting within the scope
and in furtherance of [his] office, agency, and/or employment with Love County and/or the Love
County Sheriff.”). Accordingly, Defendant Mullinax is entitled to immunity and Plaintiff’s claims
asserted against Defendant Mullinax in his individual capacity must be dismissed.
Finally, the Court notes that Plaintiff was also arrested and detained on an improper lane
use charge. Dkt. No. 2-2 at 5. Plaintiff does not dispute the validity of this arrest or assert his
innocence in this regard. See e.g., Navratil v. Parker, 726 F. Supp. 800, 805 (D. Colo. 1989)
(“Being lawfully arrested is not a cognizable harm.”). Plainly, Plaintiff has not demonstrated that
Defendant Mullinax violated a clearly established statutory or constitutional right and, therefore,
Plaintiff has failed to state a claim for which relief can be granted under Fed. R. Civ. P. 12(b)(6).
For these reasons, the Court dismisses all claims asserted by Plaintiff against Defendant Mullinax
in his individual capacity. As amendment would be futile, all individual capacity claims against
Defendant Mullinax are dismissed with prejudice.
C. Defendant John and/or Jane Doe(s) in their Official and Individual Capacities

Plaintiff asserts all claims against Unknown John and/or Jane Doe(s) (“Defendant Does”),
individually and in their official capacities as Deputy Sheriff(s) and/or Agents of Love County,
State of Oklahoma. Dkt. No. 2-2 at 2. For the reasons the claims against Defendant Grisham and
Defendant Mullinax fail (both in their official and individual capacities), Plaintiff’s claims against
Defendant Does also fail. As amendment would be futile, all claims asserted against Defendant
Does are dismissed with prejudice.
II. Claims against Defendant County
A. Oklahoma Governmental Tort Claims Act
Plaintiff asserts claims against Defendant County under the OGTCA, 51 O.S. §§ 151, et.

seq. Dkt. No. 2-2 at 5-7. Plaintiff states that Defendant County breached its duty to Plaintiff, and
Plaintiff sustained injury and damages, “due to his unlawful and illegal arrest, the unlawful search
and seizure of his person and property, and his unlawful detention, incarceration, and deprivation
of liberty.” Id. at 6. Specifically, Plaintiff states that he was injured by being wrongfully arrested
for driving without a license, undergoing the delousing treatment, and not receiving his
prescription antibiotic medication while in custody overnight. Id. at 4-5.
The OGTCA is the exclusive remedy by which an injured plaintiff may recover against an
Oklahoma governmental entity in tort. See, e.g., Fuller v. Odom, 741 P.2d 449, 451-52 (Okla.
1987) (stating that in enacting the OGTCA, the Oklahoma Legislature “has specifically abrogated
any previously existing common law or statutory right of recovery for torts committed by a
governmental entity or its employees while acting within the scope of their employment.”).
However, the OGTCA does contain certain exceptions for liability. See 51 O.S. § 155. One such
exception states that “[t]he state or a political subdivision shall not be liable if a loss or claim
results from . . . [p]rovision, equipping, operation or maintenance of any prison, jail or correctional

facility . . . .” 51 O.S. § 155(25). Claims against a state, county, or municipality which are based
squarely on their alleged failures, policies, practices, and procedures in relation to their operation
and maintenance of a correctional facility fall within this exception and are therefore barred under
the OGTCA. See Barrios v. Haskell Cty. Pub. Facilities Auth., 432 P.3d 233, 238-39 (Okla. 2018);
see also Garland v. Okla. Ex rel. Okla. Dep’t of Corr., Civ-20-306-RAW, 2021 WL 3007252, at
*4 (E.D. Okla. July 15, 2021). Accordingly, any claims brought by Plaintiff under the OGTCA
related to Love County Jail’s failure to provide Plaintiff with his prescription antibiotic medication
or related to the Jail’s delousing treatment, fall within the exception found at 51 O.S. § 155(25)
and are barred under the OGTCA. Therefore, these claims must be dismissed.

Plaintiff’s claims under the OGTCA related to conduct outside the Love County Jail—
namely, the alleged unlawful arrest for driving without a license—also fail. The Tenth Circuit has
recognized that the OGTCA immunizes the State for claims of false arrest or imprisonment for
arrests made with probable cause. Courtney v. Oklahoma ex rel. Dep’t. of Pub. Safety, 722 F.3d
1216, 1227 (10th Cir. 2013) (citing Overall v. Oklahoma ex rel. Dep’t of Pub. Safety, 910 P.2d
1087, 1092 (Okla. Civ. App. 1995) (“Had the arrest been made with probable cause, the State
would be immune from liability for any damages claimed by the plaintiffs as a direct result of that
lawful arrest. The fact the charges against the plaintiffs for which the arrests were made were later
dropped, or the plaintiffs were later acquitted of those charges, would not retroactively make the
initial arrests unlawful.”). As discussed supra, Plaintiff has not alleged or shown that Defendant
Mullinax lacked probable cause for his arrest. The facts and circumstances known to Defendant
Mullinax at the time of the arrest justify a finding of probable cause to believe that Plaintiff
committed an arrestable offense. Plaintiff acknowledges that Defendant Mullinax, a Deputy
Sheriff in the State of Oklahoma, was unaware of an administrative extension that made extended

the validity of Plaintiff’s otherwise expired license. Dkt. No. 2-2 at 4. Despite Plaintiff’s urging
of his innocence and his requests for Defendant Mullinax to verify this extension, the law does not
require Defendant Mullinax to “forego arrest pending further investigation if the facts as initially
discovered provide probable cause.” Hinkle, 962 F.3d at 1221 (quoting Romero v. Fay, 45 F.3d
1472, 1480, n.6 (10th Cir. 1995)). The facts as initially discovered—i.e., Plaintiff’s expired
driver’s license—provided probable cause that Plaintiff was driving without a valid license in
violation of Oklahoma law.
Additionally, Plaintiff does not dispute that he was lawfully arrested for improper lane use.
Therefore, even if wrongfully arrested for driving without a valid license, Plaintiff could not have

suffered harm because he was lawfully arrested on the improper lane use charge. See e.g., Navratil,
726 F. Supp. at 805 (noting that when claiming an injury related to an arrest, the arrest must be
unlawful, “for being lawfully arrested is not a cognizable harm.”).
Finally, Plaintiff asserts a claim under the OGTCA under a theory of intentional infliction
of emotional distress. Dkt. No. 2-2 at 6. Oklahoma courts have held that a plaintiff cannot recover
under the OGTCA on a tort claim which requires a showing of conduct on the part of a
governmental employee that would mandate a determination that the employee was not acting in
good faith, such as intentional infliction of emotional distress. See Murphy v. Spring, 58 F.Supp.3d
1241, 1264 (N.D. Okla. Nov. 4, 2014) (citing Fehring v. State Ins. Fund, 19 P.3d 276, 283 (Okla.
2001)). Accordingly, Plaintiff’s claim under the OGTCA for intentional infliction of emotional
distress must also be dismissed under Fed. R. Civ. P. 12(b)(6). As amendment would be futile, all
claims asserted against Defendant County under the Oklahoma Governmental Tort Claims Act are
dismissed with prejudice.
B. 42 U.S.C. § 1983
Plaintiff asserts claims against Defendant County under 42 U.S.C. § 1983. Dkt. No. 2-2 at
7-8. Specifically, Plaintiff states that Defendant County infringed upon his right to be secure

against unreasonable search and seizure, the right not to be deprived of life, liberty, or property
without due process of law, and the right not to suffer cruel and unusual punishment under the
Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Id. at 7.
There can be no municipal or organizational liability under 42 U.S.C. § 1983 “when there
was no underlying constitutional violation by any of its officers.” Olsen v. Layton Hills Mall, 312
F.3d 1304, 1317-18 (10th Cir. 2002) (citing Hinton v. City of Elwood, 997 F.2d 774, 782 (10th
Cir. 1993)). Further, municipal governments may incur only liability under § 1983 when “the
action that is alleged to be unconstitutional implements or executes a policy, statement, ordinance,
regulation or decision officially adopted and promulgated by that body's officers.” Id. (citing

Monell, 436 U.S. at 690. In other words, a county may be held liable “when the enforcement of
their policies or customs by their employees causes a deprivation of a person's federally protected
rights.” Dodds v. Richardson, 614 F.3d 1185, 1202 (10th Cir. 2010). A municipal policy or custom
can include: formal regulations or policies; informal customs amounting to widespread practices
that are so permanent as to constitute a custom or usage; decisions by final policymakers;
ratification of employees' decisions by a final policymaker; and failure to train or supervise, so
long as failure results from deliberate indifference. Bryson v. City of Okla. City, 627 F.3d 784,
788 (10th Cir. 2010).
i. Arrest and Detention
As discussed supra, Plaintiff has failed to demonstrate that Defendant Mullinax deprived
Plaintiff of any constitutional right related to his arrest. See Section I(B), supra. Because there
was no underlying constitutional violation by Defendant Mullinax related to Plaintiff’s arrest, there
can be no liability on Defendant County under 42 U.S.C.§ 1983 related to Plaintiff’s arrest and

this claim must be dismissed under Fed. R. Civ. P. 12(b)(6). See Olsen, 312 F.3d at 1317-18;
Hinton, 997 F.2d at 782. As amendment would be futile, Plaintiff’s claim regarding his arrest and
detention asserted against Defendant County under 18 U.S.C. § 1983 is dismissed with prejudice
ii. Delousing Treatment
It is not clear whether Plaintiff’s allegations related to the delousing treatment fall within
his claim under 42 U.S.C. § 1983. However, even if they do, Plaintiff has failed to state a claim
under Fed. R. Civ. P. 12(b)(6). Specifically, Plaintiff has failed to allege or show any underlying
constitutional violation related to the delousing treatment that took place at the Love County Jail.
It is well established that “[c]orrectional officials have a significant interest in conducting

a thorough search as a standard part of the intake process." Hinkle, 962 F.3d at 1232 (citing
Florence v. Board of Chosen Freeholders, 566 U.S. 318, 330 (2012)). This interest is derived
from four main concerns: “1) the possibility that new detainees will bring lice or diseases into the
facility, (2) the possibility that new detainees will have wounds that need medical attention, (3)
the growing number of gang members who are entering detention facilities and the need to identify
who they may be, and (4) the need to detect contraband.” Id. In light of these concerns, the Tenth
Circuit has recognized that "courts must defer to the judgment of correctional officials unless the
record contains substantial evidence showing their policies are an unnecessary or unjustified
response to problems of jail security." Id. In other words, "a regulation impinging on an inmate's
constitutional rights must be upheld if it is reasonably related to legitimate penological interests."
Hinkle, 962 F.3d at 1232 (citing Florence, 566 U.S. at 332-33.
Plaintiff alleges that upon booking into the Love County Jail, he was required to undergo
a “delousing treatment process.” Dkt. No. 2-2 at p. 5. As recognized by the Tenth Circuit, these
types of procedures are a standard part of the intake process in order to prevent new detainees from

bringing lice or diseases into the facility. Hinkle, 962 F.3d at 1232. Plaintiff has not alleged or
asserted any facts to show that the Love County Jail’s delousing treatment was unnecessary,
unjustified, or outside the standard practice of correctional facilities across the nation. For this
reason, the Court finds that Plaintiff has not stated a claim for unlawful search and seizure under
42 U.S.C. § 1983 regarding the delousing treatment and this clam must be dismissed under Fed.
R. Civ. P. 12(b)(6). As amendment would be futile, Plaintiff’s claims regarding the delousing
treatment process asserted against Defendant County under 18 U.S.C. § 1983 are dismissed with
prejudice.
iii. Access to Prescription Medication

Prisoners have a constitutional right to adequate medical care, and recovery under 18
U.S.C. § 1983 is available for deliberate indifference to their serious medical needs. Garcia v. Salt
Lake Cty., 768 F.2d 303, 307 (10th Cir. 1985) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). The
Tenth Circuit has found that while this right typically does not apply until after an adjudication of
guilty, pretrial detainees are in any event entitled to the degree of protection against denial of
medical attention which applies to convicted inmates and, therefore, it is proper to apply a due
process standard which protects pretrial detainees against deliberate indifference to their serious
medical needs. Id. (citing Rock v. McCoy, 763 F.2d 394, No. 84–2316 (10th Cir. 1985); Loe v.
Armistead, 582 F.2d 1291, 1294 (4th Cir. 1978), cert. denied, 446 U.S. 928, (1980); Whisenant v.
Yuam, 739 F.2d 160, 163 n.4 (4th Cir. 1984); Dewell v. Lawson, 489 F.2d 877, 882 (10th Cir.
1974)).
However, for Defendant County “to be liable under § 1983, the constitutional violation
must be a result of a government custom or policy.” Winters v. Bd. of Cty. Comm’rs, 4 F.3d 848,
855 (10th Cir. 1993) (citing Monell, 436 U.S. at 694). While Plaintiff generally alleges that he

was injured “due to, or in furtherance of, a custom, policy, practice and/or procedure of the Love
County Sheriff in effect at the time of the incident,” he has not alleged any specific deficiency in
Defendant County’s policies or procedures related to his claim for inadequate medical care. See
Dkt. 2-2 at 4. "A [county] policy cannot be inferred from a single incident of constitutional
deprivation, instead, independent evidence of the [county’s] policy must be provided.” Ortega v.
Gonzales, 17 F.3d 1437 at *3 (10th Cir. 1993) (unpublished) (citing City of Oklahoma City v.
Tuttle, 471 U.S. 808, 823-24 (plurality), 830-31 (Brennan, J., concurring) (1985)). To state a
§ 1983 claim against Defendant County, Plaintiff was required to “identify a specific deficiency
that was obvious and closely related to his injury, so that it might fairly be said that the official

policy or custom was both deliberately indifferent to his constitutional rights and the moving force
behind his injury.” Kalbaugh v. Jones, 807 Fed. Appx. 826, 831 (10th Cir. 2020) (quoting Porro
v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010)). “Mere ‘conclusory allegations’ that adequate
medical care was not provided, without more, will not subject the county to 1983 liability.” Id.
(citing Meade v. Grubbs, 841 F.2d 1512, 1531 (10th Cir. 1988)). For these reasons, the Court
finds that Plaintiff has not stated a claim under 42 U.S.C. § 1983 regarding access to prescription
medication. Therefore, this claim must be dismissed under Fed. R. Civ. P. 12(b)(6).
C. Bosh Claim under Oklahoma Constitution, Art. 2, § 30.
Finally, Plaintiff asserts claims against Defendant County under Article 2, § 30 of the
Oklahoma Constitution and under Bosh v. Cherokee Cty Bldg. Auth., 2013 OK 9, 305 P.3d 994.
Specifically, Plaintiff states that Defendant County infringed upon his right to freedom from
unreasonable search and seizure when “deputy sheriff(s) and jail personnel, within the scope and

course of their employment with [Defendant County], wrongfully and with gross negligence[,]
arrested, searched, and incarcerated the Plaintiff . . . .” Dkt. No. 2-2 at 8.
As explained supra, “[t]he liability of the state or political subdivision under The
Governmental Tort Claims Act shall be exclusive and shall constitute the extent of tort liability of
the state, a political subdivision or employee arising from common law, statue, the Oklahoma
Constitution, or otherwise.” 51 O.S. § 153(B). Bosh has been superseded by the OGTCA. See
Payne v. Kerns, 2020 OK 31, 467 P.3d 659, 666; Barrios v. Haskell Cty. Pub. Facilities Auth.,
2018 OK 90, 432 P.3d 233. For this reason, Plaintiff’s claims under Article 2, § 30 of the
Oklahoma Constitution and under Bosh are dismissed for failure to state a claim under Fed. R.

Civ. P. 12(b)(6). As amendment would be futile, all claims asserted against Defendant County
under Bosh are dismissed with prejudice.
CONCLUSION
IT IS THEREFORE ORDERED that the Motion to Dismiss [Dkt. No. 11] filed jointly by
Defendant William L. Grisham, Defendant Love County, and Defendant Jeff Mullinax is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff Kenneth Allen Harding’s Motion to Compel
[Dkt. No. 21] is hereby denied as moot.
DATED this 13th day of October 2022.

____________________________________
JOHN F. HEIL, III
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10385560. Public record. Not legal advice.