Feenstra v. Sigler

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

AMANDA FEENSTRA, SHARONICA )

CARTER, and LONNIE FEENSTRA, )

)

Plaintiffs, )

)

v. ) Case No. 19-CV-00234-GKF-FHM

)

JARED SIGLER, Special Judge of the )

District Court of Washington County, )

in his official capacity; )

CURTIS DELAPP, former Judge of the )

District Court of Washington County, )

in his official capacity; )

OKLAHOMA INDIGENT DEFENSE )

SYSTEM, an Oklahoma State Agency; )

STATE OF OKLAHOMA ex rel. )

OKLAHOMA INDIGENT DEFENSE )

SYSTEM; )

CRAIG SUTTER, Executive Director of the )

Oklahoma Indigent Defense System; and )

OKLAHOMA INDIGENT DEFENSE )

SYSTEM BOARD OF DIRECTORS, )

)

Defendants. )

OPINION AND ORDER

This matter comes before the court on the Motion to Dismiss [Doc. 11] of defendants the

Oklahoma Indigent Defense System; State of Oklahoma ex rel. Oklahoma Indigent Defense

System; Craig Sutter, Executive Director of the Oklahoma Indigent Defense System; and the

Oklahoma Indigent Defense System Board of Directors (collectively, “OIDS Defendants”). The

court conducted a hearing on the motion on October 10, 2019. For the reasons discussed below,

the motion is granted in part and denied in part.

I. Background and Procedural History

Plaintiffs bring this case primarily alleging that defendants Jared Sigler, Special Judge of

the District Court of Washington County, in his official capacity and Curtis DeLapp, former Judge

of the District Court of Washington County, in his official capacity (collectively, “Judicial

Defendants”) “have systemically failed to conduct an inquiry into criminal defendants’ ability to

pay either before imposing those fines and fees at sentencing, or before sanctioning indigent

defendants for non-payment—including by incarceration.” [Doc. 3-1, ¶ 10]. Plaintiffs assert five

claims against the Judicial Defendants arising from that general allegation.1 Additionally,

plaintiffs assert a single claim against the OIDS Defendants: denial of the right to counsel in

violation of the assistance of counsel clause of the Sixth Amendment to the U.S. Constitution, the

Equal Protection and Due Process Clauses of the Fourteenth Amendment in the U.S. Constitution

and 42 U.S.C. § 1983 (Count Three).

By way of background, the Oklahoma legislature created the Oklahoma Indigent Defense

System to “provide counsel in cases, as provided in the Indigent Defense Act, in which the

defendant is indigent and unable to employ counsel.” OKLA. STAT. tit. 22, § 1355(B). Mandatory

representation is extended to “all capital and felony cases and in all misdemeanor and traffic cases

punishable by incarceration.” Id. § 1355.6(A). OIDS provides representation by contracting with

private attorneys. Id. § 1355.8. Oklahoma statutes include certain requirements as to the award

and content of OIDS’ contracts with those attorneys. [Id.].

Plaintiffs generally allege that, through the manner in which the OIDS contracts with

private attorneys are administered, “the OIDS Defendants created a system that denies Plaintiffs

1 The Judicial Defendants also filed a motion to dismiss as to the claims asserted against them.

[Doc. 10]. The court determined that motion under separate order. See [Doc. 47].

conflict-free counsel in relation to the imposition and challenge of fines, fees, and costs.” [Doc.

24, p. 34]; see also [Doc. 46, pp. 81:3 to 83:21]. The OIDS Defendants have collectively moved

to dismiss the single claim asserted against them based on six propositions. The OIDS Defendants

do not seek dismissal on any ground specific to any one defendant. The motion is ripe for the

court’s review.

II. Allegations of the Complaint2

With respect to the OIDS Defendants, the Complaint includes the following allegations:

In derogation of federal and state law requirements, the Oklahoma judicial system creates “a

perverse incentive for . . . indigent defendants’ own lawyers to impose and enforce fines and fees

without regard for criminal defendants’ ability to pay.” [Doc. 3-1, ¶ 11]. Specifically, the

Oklahoma Indigent Defense System (“OIDS”)—the state agency responsible for providing public

defense services to indigent defendants—has created powerful financial incentives to get its

attorneys to close cases as quickly as possible, even when it means forfeiting their clients’ right to

an inquiry into the clients’ ability to pay fines and fees. [Id. ¶ 12].

OIDS was created to implement the Indigent Defense Act, and is governed by the

Oklahoma Indigent Defense System Board of Directors, which has the “authority to provide for

representation of indigent criminal defendants and others for whom representation is required by

either the Constitution or laws of [Oklahoma] by attorneys employed by the System.” [Id. ¶ 33

(quoting OKLA. STAT. tit. 22, ch. 1355, Rule 6(d))]. OIDS is managed by Craig Sutter, the

Executive Director employed by the Board since March 2017. [Id.]. As Executive Director, Sutter

2 Plaintiffs originally filed a Petition in the District Court in and for Washington County, and the

OIDS Defendants removed the matter to this court. For consistency with the Federal Rules of

Civil Procedure, the court refers to the Petition filed in this case as the Complaint.

has the authority to “enter into contracts to provide counsel in cases in which the defendant is

indigent and unable to employ counsel.” [Id. (quoting Okla. Stat. ch. 1355, Rule 4(c)(2))].

OIDS implements its obligations to provide defense representation to indigent clients by,

among other things, executing flat-rate fiscal year contracts with private attorneys in fifty-five (55)

counties, including Washington County. [Id. ¶ 34]. Those contracts contain a provision delaying

the final ten percent (10%) of the annual contractual payment until the end of the year and upon

verification that all of the contract attorney’s cases are closed, “thus incentivizing OIDS attorneys

to close cases as quickly as possible. [Id.]. Specifically, plaintiffs allege that the “10% provision”

creates a “powerful, personal financial incentive” to avoid expending time to challenge the

imposition of fines and fees against their clients absent the ability to pay hearing mandated by

OKLA. STAT. tit. 22, ch. 18, Rule 8.1. [Id.]. “That incentive, and the conduct of OIDS attorneys

in conformity therewith, is fundamentally in conflict with their clients’ interest in having the Rule

8.1 hearing,” resulting in deprivation of the criminal defendants’ rights to an ability-to-pay inquiry

as well as their right to conflict-free counsel as secured by the U.S. Constitution. [Id.].

Plaintiffs were represented by court-appointed counsel working pursuant to the applicable

OIDS contract with respect to criminal charges filed against them in Washington County. [Id. ¶

35]. Plaintiffs allege that “[c]onsistent with the structural conflicts created by the OIDS contract”

plaintiffs were not advised by their respective OIDS-supplied attorney that he or she possessed the

right to demand an inquiry and fact-based finding as to their ability to pay fines and fees. [Id.; see

also id. ¶¶ 36, 38-40]. Specifically, plaintiffs allege that they were each represented by OIDS-

appointed counsel at the sentencing hearings wherein fines and fees were imposed, and, “[a]t no

point prior to, during, or after these hearings did OIDS-appointed counsel inform Plaintiffs of their

right to an ability to pay hearing pursuant to Rule 8.1, nor did OIDS-appointed counsel challenge

the imposition of fines and fees against Plaintiffs due to their poverty.” [Id. ¶ 69].

Finally, plaintiffs allege OIDS routinely does not provide counsel to indigent defendants

during “cost docket” appearances in Washington County, “despite knowledge that indigent

defendants routinely face incarceration during these proceedings and are routinely denied

procedural safeguards, including notice and an opportunity to be heard, prior to incarceration,”

and that plaintiffs specifically did not receive OIDS-appointed counsel during their “cost docket”

hearing, despite “Judge Sigler’s and Judge DeLapp’s well known policies, practices and customs

of incarcerating defendants upon failure to make installment payments.” [Id. ¶¶ 70-71].

III. Motion to Dismiss Standard

Federal Rule of Civil Procedure 8 requires a pleading to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “To

survive a motion to dismiss, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.

(quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. The court accepts as true all factual

allegations, but the tenet is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678.

IV. Analysis

The OIDS Defendants seek dismissal of all of plaintiffs’ claim against them on the basis

of six separate propositions: (1) OIDS complied with applicable Oklahoma statutes; (2) OIDS has

no attorney-client relationship with any of the plaintiffs; (3) plaintiffs failed to allege the OIDS

Defendants’ “personal participation” in any of the alleged constitutional violations3; (4) plaintiffs

fail to meet the standards for injunctive relief; (5) plaintiffs fail to allege their convictions have

been overturned or otherwise negated pursuant to Heck v. Humphrey, 512 U.S. 477 (1994); and

(6) OIDS is not a state actor for purposes of a § 1983 claim.4 The court separately considers each

proposition.

A. Compliance with Oklahoma Statutes

The OIDS Defendants first contend that the 10% withholdance is statutorily required and

therefore plaintiffs cannot state a claim premised on the OIDS Defendants’ compliance with the

statute. See OKLA. STAT. tit. 22, § 1355.8(G)(2). In response, plaintiffs contend that the OIDS

Defendants “in implementing the statute as they have,” created a systemic conflict. Plaintiffs argue

that the Oklahoma Indigent Defense Act delegates “broad authority” to the OIDS Defendants with

respect to contract and “[n]othing in the OIDA . . . compels OIDS to implement statutory

provisions in a manner that—as a matter of pleaded fact—ensures that OIDS attorneys would fail,

or choose not, to advise clients of their statutory and constitutional rights regarding fines, fees and

costs.” [Doc. 24, pp. 32-33].

3 The OIDS Defendants characterize this proposition as “supervisory liability is unavailable to

plaintiffs.” [Doc. 11, p. 13]. However, based on the court’s review, the gravamen of OIDS

Defendants’ third proposition is that plaintiffs failed to adequately allege the OIDS Defendants’

personal involvement in the alleged constitutional violation and the requisite state of mind. [Doc.

11, pp. 18-19].

4 In reply, the OIDS Defendants also argue the Sixth Amendment does not require attorney

representation at a Rule 8 hearing. [Doc. 37]. However, this argument was raised for the first time

in reply and was therefore stricken. [Doc. 40]. Additionally, during the hearing on the motion to

dismiss, the OIDS Defendants sought to “adopt and join in the [Judicial Defendants’] statute of

limitations argument [and] the arguments [sic] as it applies to standing.” [Doc. 46, pp. 64:20 to

65:1]. However, because the arguments were not raised in the OIDS Defendants’ motion to

dismiss, the court declines to consider the adopted arguments at this stage of the litigation.

Looking to the allegations of the Complaint with respect to the asserted conflict, the

Complaint alleges that the 10% fee provision creates a financial incentive to avoid expending the

necessary time to challenge the imposition of fees, and that OIDS attorneys act in conformity

therewith. [Doc. 3-1, ¶¶ 34, 67]. To that end, the Complaint alleges that the plaintiffs were not

advised by their OIDS-attorneys of their right to an ability-to-pay inquiry and to demand a fact-

based finding at sentencing and that, as a result, plaintiffs have suffered a deprivation of property

and liberty without due process. [Id. ¶¶ 35, 68]. Accordingly, based on the allegations of the

Complaint, the court may reasonably infer that the OIDS Defendants implemented a policy that

amounts to deliberate indifference to the plaintiffs’ constitutional rights, and that the policy’s the

moving force behind the constitutional violation. See Jones v. Grant Cty., No. CV-12-0188-EFS,

2014 WL 2196508, at *7 (E.D. Wash. May 27, 2014).

The OIDS Defendants next argue that their powers and responsibilities are statutorily

limited and that Rule 8.1 hearings and cost docket appearances do not fall within the scope of

OIDS’s statutory responsibilities. See OKLA. STAT. tit. 22, § 1355.6(A). Pursuant to subsection

1355.6(A), OIDS “shall have the responsibility of defending all indigents, as determined in

accordance with the provisions of the Indigent Defense Act in all capital and felony cases and in

all misdemeanor and traffic cases punishable by incarceration.” Id. The OIDS Defendants argue

that hearings directed to an ability to pay fines and fees do not constitute capital, felony,

misdemeanor, or traffic cases and therefore plaintiffs were not entitled to OIDS representation.

The OIDS Defendants take the position that OIDS-appointed representation ends following the

entry of a plea agreement or trial verdict and the termination of one direct appeal of conviction.

[Doc. 46, pp. 69:24 to 70:4].

However, pursuant to Rule 8.1, “[w]hen the Judgment and Sentence of a court, either in

whole or in part, imposes a fine and/or costs upon a defendant, a judicial hearing shall be conducted

and judicial determination made as to the defendant’s ability to immediately satisfy the fine and

costs.” OKLA. STAT. tit. 22, ch. 18, Rule 8.1 (emphasis added). The statute makes mandatory an

ability-to-pay hearing when a Judgment and Sentence—the entry of which the OIDS Defendants

concedes falls within the scope of OIDS’s representation—imposes fines and/or costs.

Nevertheless, plaintiffs allege that, “[c]onsistent with the structural conflicts created by the OIDS

contract,” none of the plaintiffs were advised by their OIDS-appointed attorneys prior to, during,

or after their sentencing hearings that he or she possessed the right to an ability-to-pay hearing

pursuant to Rule 8.1, nor did the OIDS-appointed counsel challenge the imposition of fines and

fees against plaintiffs due to their poverty. [Doc. 3-1, ¶¶ 35, 69]. This is because, according to

plaintiffs, the manner in which the OIDS Defendants implement the statutory 10% provision

included in the OIDS contracts, “provides a powerful financial incentive for OIDS-appointed

attorneys to ‘close-out’ cases quickly and refrain from other courses of action that might

complicate or prolong their clients’ cases, including objecting to the imposition [of] fines and costs

against their clients absent the ability to pay hearing mandated by Rule 8.1.” [Id. ¶ 67]. Taking

the allegations as true and viewing them in the light most favorable to the plaintiffs, plaintiffs

plausibly assert that the OIDS Defendants violated plaintiffs’ constitutional rights with respect to

the initial Rule 8.1 hearings, despite the OIDS Defendants’ asserted compliance with Oklahoma

statutes.

With respect to the later, post-judgment “cost docket” appearances, however, plaintiffs fail

to state a plausible claim. Plaintiffs allege that “Defendant OIDS does not provide counsel to

indigent defendants during ‘cost docket” hearings, despite knowledge that indigent defendants

routinely face incarceration during these proceedings and are routinely denied procedural

safeguards, including notice and an opportunity to be heard, prior to incarceration.” [Id. ¶ 70].

The Complaint includes no allegations of a specific statute or contract provision requiring, or even

permitting, the OIDS Defendants to provide representation to indigent defendants at “cost docket”

appearances. In their response to the OIDS Defendants’ motion, plaintiffs cite OKLA. STAT. tit.

22, § 1355.6(B), which provides that, “[u]pon prior approval by the Executive Director, the System

may also represent indigents in other state proceedings, if such representation is related to the case

for which the original appointment of the System was made and if not otherwise prohibited by the

Indigent Defense Act,” as authorizing OIDS representation at “every Rule 8 proceeding.” [Doc.

24, p. 33]. However, “when deciding a Rule 12(b)(6) motion, this Court may not consider new

allegations contained in a plaintiff’s response.” Warad West, LLC v. Sorin CRM USA Inc., 119 F.

Supp. 3d 1294, 1305 (D. Colo. 2015). Looking only to the allegations of the Complaint, plaintiffs

allege no facts which would permit the court to infer that the OIDS Defendants assumed any

responsibility or bore any statutory duty with respect to “cost docket” appearances. Therefore,

plaintiffs have not nudged their § 1983 claim against the OIDS Defendants premised on “cost

docket” appearances “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

Based on the foregoing, the Complaint plausibly alleges that the OIDS Defendants acted

in a manner so as to deprive plaintiffs of their constitutional rights to the extent that plaintiffs’ §

1983 claim is premised on the OIDS Defendants’ alleged implementation of the applicable

Oklahoma statutes in a manner so as to create a “powerful, personal financial incentive” to avoid

expending time to challenge the imposition of fines and fees against the plaintiffs, including

through the ability-to-pay hearing mandated by OKLA. STAT. tit. 22, ch. 18, Rule 8.1. Thus,

dismissal of the § 1983 claim against the OIDS Defendants is not merited based on asserted

compliance with Oklahoma statutes. However, plaintiffs fail to state a plausible claim based on

the OIDS Defendants’ failure to proffer advice regarding, or provide representation at, “cost

docket” appearances. To the extent premised on post-judgment “cost docket” appearances,

plaintiffs’ claim is dismissed.

B. Lack of Attorney-Client Relationship

The OIDS Defendants next argue that plaintiffs’ claim fails because plaintiffs have not

alleged an attorney-client relationship with the OIDS Defendants. [Doc. 11, p. 11]. However, the

court does not construe plaintiffs’ claim as one for ineffective assistance counsel based on the

advice provided by plaintiffs’ individual OIDS-appointed counsel. Rather, viewing the allegations

in the light most favorable to plaintiffs, the court construes the Complaint to challenge the manner

in which the OIDS Defendants implement the statutes governing them—essentially, OIDS’s

policy—which allegedly resulted in a denial of plaintiffs’ constitutional rights. Thus, the court

declines to dismiss the § 1983 claim for failure to allege an attorney-client relationship.

C. Personal Participation

The OIDS Defendants next contend that, because plaintiffs include no allegations as to the

OIDS Defendants’ personal participation in plaintiffs’ criminal cases, plaintiffs fail to state a

plausible § 1983 claim. However, as recognized by the Tenth Circuit, “‘direct participation is not

necessary’ for liability under § 1983.” Halley v. Huckaby, 902 F.3d 1136, 1148 (10th Cir. 2018)

(citing Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990)). Rather, “[t]he requisite causal

connection is satisfied if the defendant set in motion a series of events that the defendant knew or

reasonably should have known would cause others to deprive the plaintiff of her constitutional

rights.” Id. Further, § 1983 permits liability against a defendant “who creates, promulgates,

implements, or in some other way possesses responsibility for the continued operation of a policy

the enforcement . . . of which ‘subjects, or causes to be subjected’ that plaintiff ‘to the deprivation

of any rights . . . secured by the Constitution.’” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th

Cir. 2010) (quoting 42 U.S.C. § 1983).

Plaintiffs allege that the OIDS Defendants are statutorily obligated to provide legal

representation to indigent criminal defendants under Oklahoma law [Doc. 3-1, ¶ 33]; that OIDS

implements its obligations through flat-rate fiscal year contracts with private attorneys [Id. ¶ 34];

that these contracts include a statutorily-required provision delaying the final 10% of the annual

contractual payment until the end of the year and upon verification that all of the contract attorney’s

cases are closed [Id.; see also id. ¶ 12]; and that through its implementation of the 10% holdback

provision, OIDS creates a powerful financial incentive for attorneys to refrain from courses of

action that would complicate or prolong clients’ cases, including objecting to the imposition of

fines and costs against clients absent the ability-to-pay inquiry mandated by Rule 8.1 [Id. ¶ 67].

Plaintiffs further allege that the OIDS Defendants do so despite knowledge that indigent

defendants are routinely denied ability-to-pay inquiries pursuant to Rule 8.1 and procedural

safeguards prior to incarceration for failure to pay. [Id. ¶ 69]. Taking these allegations as true,

plaintiffs plausibly allege that the OIDS Defendants engaged in conduct and policies which they

knew or should have known would cause plaintiffs and other indigent criminal defendants in

Washington County to be deprived of their constitutional rights, subject to later proof. Thus, the

Complaint plausibly states a § 1983 claim against the OIDS Defendants.

D. Failure to Meet the Standards for Injunctive Relief

The OIDS Defendants assert that plaintiffs fail to satisfy the requirements for injunctive

relief for two reasons.

First, the OIDS Defendants argue plaintiffs fail to identify the nature of the injunctive relief

sought and therefore the claim is subject to dismissal. [Doc. 11, p. 19]. Construing the Complaint

in the light most favorable to plaintiffs, the Complaint requests that the OIDS Defendants be

enjoined from implementing the Oklahoma Indigent Defense Act in a manner that infringes on the

constitutional right to conflict-free counsel. See [Doc. 3-1, ¶¶ 34, 67-72, prayer for relief]. Thus,

plaintiffs sufficiently identify the nature of the injunctive relief sought.

Second, the OIDS Defendants contend that, because an adequate remedy at law exists,

injunctive relief is unavailable. However, plaintiffs seek only equitable relief from the OIDS

Defendants. Thus, no adequate remedy at law exists. See Powell Briscoe, Inc. v. Peters, 269 P.2d

787, 791 (Okla. 1954) (quoting Marshall v. Homier, 74 P. 368 (Okla. 1903)) (“Where, in an action

for an injunction, the alleged contemplated injury is such that can be fully compensated in money

damages, and the defendants are wholly and unquestionably solvent, a temporary injunction should

not be granted.”). The OIDS Defendants point to the state appellate and post-conviction relief

procedures as adequate legal remedies. However, in doing so, defendants seek to engraft an

exhaustion requirement onto a § 1983 claim, where none is required. See Wilkinson v. Dotson,

544 U.S. 74, 79 (2005) (“[H]abeas corpus actions require a petitioner fully to exhaust state

remedies, which § 1983 does not.”). The OIDS Defendants’ motion to dismiss plaintiffs’ request

for injunctive relief is denied.

E. Heck v. Humphrey

The OIDS Defendants next argue that plaintiffs’ claim is precluded pursuant to Heck v.

Humphrey, 512 U.S. 477 (1994). In Heck, the U.S. Supreme Court held that

in order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court’s issuance of a writ of habeas corpus, 28

U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable under § 1983.

Id. at 486-87 (emphasis in original) (internal footnotes omitted). The OIDS Defendants contend

that, because plaintiffs ask the court to vacate the costs, fees, and fines imposed upon them, Heck

applies to preclude plaintiffs’ claim.

The OIDS Defendants’ argument is contrary to the plain language of Heck. In Heck, the

Court stated that “if the district court determines that the plaintiff’s action, even if successful, will

not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action

should be allowed to proceed, in the absence of some other bar to the suit.” Heck, 512 U.S. at 487

(internal footnote omitted) (emphasis in original). Relying on this language, courts in other circuits

have held that Heck does not bar suits challenging incarceration for failure to pay fines and fees in

the absence of an ability-to-pay hearing. See Powers v. Hamilton Cty. Pub. Def. Comm’n, 501

F.3d 592, 604-05 (6th Cir. 2007); Cain v. City of New Orleans, 186 F. Supp. 3d 536, 548 (E.D.

La. 2016); Fant v. City of Ferguson, 107 F Supp. 3d 1016, 1029 (E.D. Mo. 2015), reversed in part

on reconsideration on other grounds, 2015 WL 4232917. In Powers, the Sixth Circuit reasoned

that success on the merits of the § 1983 claim arising from deprivation of an indigency hearing

would “mean[] only that the failure to grant [plaintiff] an indigency hearing was wrongful, not that

the order committing him to jail was wrongful.” Powers, 501 F.3d at 604. Powers is persuasive.

Plaintiffs challenge the procedure to impose the fines and fees—specifically the failure to grant an

indigency hearing—not the judgment and sentence of the fines and fees themselves.5 Thus, Heck

does not apply to preclude plaintiffs’ claim.6

F. State Actor

Finally, the OIDS Defendants argue that OIDS is not a state actor for purposes of a § 1983

claim, citing the Supreme Court’s decision in Polk County v. Dodson, 454 U.S. 312 (1981),

wherein the Court held that public defenders are not public actors for purposes of § 1983 when

performing a lawyer’s traditional functions as counsel. Id. at 324-25 (concluding public defender

did not act under color of state law “in exercising her independent professional judgment in a

criminal proceeding”). However, in Polk County, the Supreme Court also stated as follows:

In concluding that [public defender] did not act under color of state law in

exercising her independent professional judgment in a criminal proceeding, we do

not suggest that a public defender never acts in that role. In Branti v. Finkel, 445

U.S. 507, 100 S. Ct. 1287, 63 L.Ed.2d 574 (1980), for example, we found that a

public defender so acted when making hiring and firing decisions on behalf of the

State. It may be—although the question is not present in this case—that a public

defender also would act under color of state law while performing certain

administrative and possibly investigative functions.

Id. Further, the court left open the possibility that the pleading would state a plausible § 1983

claim based on the existence of an unconstitutional policy. Id. at 326.

5 Further, although plaintiffs seek vacatur, the request is limited to “all outstanding fines, fees and

costs currently outstanding and assessed against each Plaintiff.” [Doc. 3-1, p. 27 (emphasis

added)]. Plaintiffs do not seek vacatur of all fines, fees, and costs assessed against plaintiffs. Thus,

plaintiffs’ request for vacatur does not “necessarily imply the invalidity of [plaintiffs’]

conviction[s] or sentence[s].” Heck, 512 U.S. at 487.

6 Additionally, although the court has dismissed plaintiffs’ claim to the extent premised on post-

judgment “cost docket” appearances, the court notes that the OIDS Defendants’ argument is

misplaced with respect those appearances. If successful in proving that the OIDS Defendants’

policy with respect to post-judgment “cost docket” appearances was unconstitutional, plaintiffs

would be entitled only to an “opportunity to be heard as to the refusal or neglect to pay the

installment when due,” OKLA. STAT. tit. 22, ch. 18, Rule 8.4, which “necessarily impl[ies]” nothing

about plaintiffs’ convictions. Heck, 512 U.S. at 487.

OIDS is a state agency which was created to “provide counsel in cases . . . in which the

defendant is indigent and unable to employ counsel.” OKLA. STAT. tit. 22, § 1355(B); see also

[Doc. 46, pp. 65:25 to 66:3]. Plaintiffs allege that the OIDS Defendants have structured their

contracts in a way so as to create a pervasive conflict of interest. [Doc. 3-1, ¶ 67]. Thus, plaintiffs

allegations take the form of a challenge to a state administrative function rather than to an exercise

of independent professional judgment. See Powers, 501 F.3d at 612 (“Unlike the plaintiff in Polk

County, [plaintiff] does not seek to recover on the basis of the failures of his individual counsel,

but on the basis of an alleged agency-wide policy or custom of routinely ignoring the issue of

indigency in the context of non-payment of fines. Although we acknowledge that requesting

indigency hearings is within a lawyer’s ‘traditional functions,’ the conduct complained of is

nonetheless ‘administrative’ in character for the reasons already described: [plaintiff] maintains

that the Public Defender’s inaction is systemic and therefore carries the imprimatur of

administrative approval.”). Accordingly, plaintiffs plausibly allege the OIDS Defendants were

state actors for purposes of a § 1983 claim.

V. Conclusion

WHEREFORE, the Motion to Dismiss [Doc. 11] of defendants the Oklahoma Indigent

Defense System; State of Oklahoma ex rel. Oklahoma Indigent Defense System; Craig Sutter,

Executive Director of the Oklahoma Indigent Defense System; and the Oklahoma Indigent

Defense System Board of Directors is granted in part and denied in part. The motion is denied

with respect to the extent that plaintiffs’ § 1983 claim is premised on the OIDS Defendants’ alleged

implementation of the applicable Oklahoma statutes in a manner so as to create a “powerful,

personal financial incentive” to avoid expending time to challenge the imposition of fines and fees

against their clients absent the ability to pay hearing mandated by OKLA. STAT. tit. 22, ch. 18, Rule

8.1. [Id.]. The motion is otherwise granted.

IT IS FURTHER ORDERED that, if plaintiffs desire to amend their Complaint with

respect to “cost docket” appearances, plaintiffs must include the proposed amendments in the

motion and briefing directed to substitution and/or amendment previously ordered by this court

due to Judge DeLapp’s departure from the Washington County bench. See [Doc. 47]. Plaintiff’s

briefing shall be filed no later than November 27, 2019. Defendant may file a response no later

than December 11, 2019. Plaintiff may submit a reply brief no later than December 18, 2019.

DATED this 14th day of November, 2019.