Brashear v. Board of County Commissioners of Oklahoma County

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

PATSY ANN BRASHEAR, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-19-0445-F

)

BOARD OF COUNTY ) (District Court of Oklahoma

COMMISSIONERS OF ) County Case No. CJ-19-42)

OKLAHOMA COUNTY, et al., )

)

Defendants. )

ORDER

Two motions to dismiss are before the court. The first is brought by the

Board of County Commissioners of Oklahoma County (the board) and Sheriff

P. D. Taylor (the sheriff) in his official capacity. Doc. no. 3. Plaintiff filed a

response brief. Doc. no. 9. Defendants filed a reply brief. Doc. no. 10. The

second motion is brought by Sheriff Taylor in his individual capacity. Doc. no.

4. Plaintiff filed a response brief. Doc. no. 8. Defendant filed a reply brief. Doc.

no. 11. The only other defendants are non-moving Doe defendants.

The amended complaint alleges a federal claim as well as a state law claim

against all defendants. Moving defendants ask the court to dismiss them from

both of these claims under Rule 12(b)(6), Fed. R. Civ. P. As will be seen, this

order grants the motion in part, granting it to the extent that it asks the court to

dismiss the federal claim. With the federal claim dismissed, this order declines

supplemental jurisdiction over the state law claim and remands this action, leaving

the state court to determine the sufficiency of the state law claim.

I. Standards

The inquiry under Rule 12(b)(6) is whether the complaint contains enough

facts to state a claim for relief that is plausible on its face. Ridge at Red Hawk,

L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir., 2007), quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 547 (2007). To survive a motion to dismiss, a

plaintiff must nudge his claims across the line from conceivable to plausible. Id.

The mere metaphysical possibility that some plaintiff could prove some set of

facts in support of the pleaded claims is insufficient; the complaint must give the

court reason to believe that this plaintiff has a reasonable likelihood of mustering

factual support for these claims. Ridge at Red Hawk, 493 F.3d at 1177. In

conducting its review, the court assumes the truth of the plaintiff’s well-pleaded

factual allegations and views them in the light most favorable to the plaintiff. Id.

Pleadings that are no more than legal conclusions are not entitled to the

assumption of truth; while legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations. Ashcroft v. Iqbal, 556

U.S.662, 664 (2009). When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they plausibly give rise

to an entitlement to relief. Id. The court will disregard mere “labels and

conclusions” and “[t]hreadbare recitals of the elements of a cause of action” to

determine if what remains meets the standard of plausibility. Twombly, 550 U.S.

at 555; Iqbal, 556 U.S. at 678.

II. The Claims

The amended complaint1 alleges a state law assault and battery claim, as

well as a federal claim under 42 U.S.C. § 1983.

1 The operative version of the complaint was filed in state court as the “First Amended Petition”

and is referred to in this order as the “amended complaint.” Doc. no. 1-4.

A. The State Law Claim

The “First Cause of Action” in the amended complaint is a state law claim

for assault and battery which appears to be alleged against all defendants. This

claim alleges that plaintiff was assaulted while she was in the custody of the

Oklahoma County Jail as a pre-trial detainee, as a result of which plaintiff suffered

a fractured ankle.

B. The Federal Claim

The only federal claim is a civil rights claim brought under 42 U.S.C.

§ 1983. This claim is alleged against the board and the sheriff (in both of his

capacities), as well as the Doe defendants.

The § 1983 claim alleges that in violation of plaintiff’s rights under the

Fourth, Eighth and Fourteenth Amendments to the United States Constitution,2

defendants failed to protect plaintiff from the assault which occurred while she

was in the custody of the Oklahoma County Jail as a pretrial detainee, as a result

of which plaintiff suffered a fractured ankle. See, doc. no. 1-4, ¶¶ 14-15, 52, 53.

As evidence of defendants’ deliberate indifference to their constitutional duty to

protect plaintiff from an assault, the amended complaint further alleges that

defendants allowed jail recordings (which presumably showed plaintiff while she

was at the jail) to be destroyed after such recordings were requested by plaintiff.

Id. at ¶ 59 (film, videotape or recordings).

The amended complaint also appears to allege a § 1983 claim premised on

failure to provide plaintiff with medical care and treatment while she was a pre-

trial detainee at the jail. This aspect of the § 1983 claim will be dismissed without

2 Based on the alleged facts, it appears that of the amendments cited in the amended complaint,

plaintiff, as a pre-trial detainee, could potentially assert her rights under the Fourteenth

Amendment. This issue has not been briefed, however, and the court makes no ruling on it.

prejudice for two reasons. First, plaintiff’s briefing expressly states that this

action is not about failure to provide medical care.3 Second, defendants’ motions

challenge the plausibility of every aspect of plaintiff’s § 1983 claim, including the

part that is premised on a failure to provide medical care or treatment. Plaintiff’s

response briefs do not defend the viability of this aspect of her § 1983 claim,

arguing, instead, that lack of medical care is not what this action is about, and

focusing on defendants’ alleged failure to protect her from an assault. As plaintiff

has not defended the plausibility of a § 1983 claim premised on failure to provide

medical care or treatment, the court deems that aspect of the § 1983 claim

confessed,4 and the court will dismiss that aspect of the § 1983 claim, without

prejudice, under Rule 12(b)(6).

III. The Motions

A. The Board’s Motion to Dismiss it From the § 1983 Claim

The amended complaint seeks to hold the board liable on plaintiff’s § 1983

claim as “a political subdivision of the State of Oklahoma” which is “responsible

for the Oklahoma County Jail.” Id. at ¶ 4.5 The allegation that the board is

responsible for the Oklahoma County Jail is incorrect as a matter of law. Meade

v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988), abrogated in part on other

3 Plaintiff’s brief states as follows. “Defendants spend inordinate time in their brief [arguing]

that failure to provide medical care is not viable as a matter of law. This case is not about a

‘failure to provide medical care.’ It is about an intentional or grossly negligent fracture of a

detainees [sic] bones by the Defendants. It is about the Defendants [sic] purposeful and

deliberate destruction of evidence to conceal the intentional or grossly [negligent] acts of the

Defendants.” Doc. no. 9, p. 6.

4 See, LCvR7.1(g) (any motion not opposed within 21 days may, in the discretion of the court,

be deemed confessed)

5 Consistent with this theory of liability, the caption of the amended complaint describes the

board, incorrectly, “as governing body of Oklahoma County Jail.”

grounds,6 is a § 1983 case which held that “Under Oklahoma law, the Board has

no statutory duty to hire, train, supervise or discipline the county sheriffs or their

deputies.” Id. Then, in Meade’s discussion of official capacity claims, the court

stated that “For a county to be held responsible, it must have caused the harm

through the execution of its own policy or custom or by those whose edicts or acts

may fairly be said to represent official policy.” Id. at 1529. Under these

principles, Meade affirmed the district court’s dismissal of the board members in

both their individual and official capacities.

The Oklahoma Supreme Court confirmed this understanding of Oklahoma

law in Estate of Crowell v. Board of County Commissioners of County of

Cleveland, 237 P.3d 134, 142 (Okla. 2010). (Crowell’s estate alleged a § 1983

claim after Crowell died of an asthma attack while in the county jail.) Crowell

states that it was the sheriff as the final policymaker for a county jail, and not the

Board of County Commissioners of Cleveland County, who was responsible for

medical care at the jail. Id. The Court reasoned that the board has no statutory

duty to hire, train, supervise, or discipline county sheriffs or deputies.

Accordingly, Crowell upheld summary judgment in favor of the board. Crowell

at 142, n.14, citing Meade, 841 F.2d 1512, at n.16.

In Jantzen v. Hawkins, 188 F.3d 1247, 1259 (10th Cir. 1999), the court of

appeals affirmed the district court’s grant of summary judgment in favor of the

Canadian County Board of County Commissioners, noting that “The Sheriff

neither reports to, nor is controlled by, the Board.” Id.

6 As noted in Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767 (10th Cir.

2013), Meade refers to claims against supervisors as claims based on “supervisory liability,” a

label which may be misunderstood as implying vicarious liability. Under § 1983, each

government official, his title notwithstanding, is only liable for his or her own misconduct. Id.

The board will be dismissed with prejudice from the § 1983 claim, and

defendants’ motions will be granted to that extent.

B. The Sheriff’s Motion to Dismiss Him From the § 1983 Claim

In His Official Capacity

The sheriff, to the extent he is named in his official capacity, argues the

§ 1983 claim is redundant to the § 1983 claim against the board and should

therefore be dismissed. The court rejects this argument for dismissal. Crowell

held that while the board was properly dismissed (see the discussion above), the

sheriff, as a defendant in his official capacity, should not have been granted

summary judgment, and the Court remanded for trial on that basis. 237 P.3d at

145. Thus, under Crowell, the fact that the board has been dismissed from this

action does not entitle the sheriff to be dismissed in his official capacity.

That is not the end of the matter, however, because the amended complaint

fails to state a plausible claim against the sheriff in his official capacity for other

reasons. The amended complaint alleges that plaintiff sustained a fractured ankle

as a result of an assault which occurred while she was at the jail as a pre-trial

detainee. As for who committed the alleged assault, the amended complaint

indicates, when read as a whole,7 that the assault was committed by one or more

of the Doe defendants, who the amended complaint indicates are members of the

jail’s staff.8 Beyond that, the amended complaint does not identify or otherwise

describe the individuals who allegedly assaulted the plaintiff. The amended

7 See, e.g., doc. no. 1-4, ¶ 32 (“Doe defendants intentionally and maliciously caused the

grievous injuries suffered by Ms. Brashear”); ¶ 58 (“That BOCC and Defendant Sheriff P.D.

Taylor violated policies and procedures by failing to provide proper training which resulted in

the John Does [sic] defendants [sic] abuse of Ms. Brashear”).

8 See, e.g., doc. no. 1-4, ¶ 7 (“by virtue of their position,” Doe defendants acted “under color of

law”), ¶ 16 (“fracture suffered by Ms. Brashear was…outside the authority of the officers and

staff of the County Jail”).

complaint also does not allege the nature of the assault. It does not allege where

in the jail the assault occurred. It does not allege at what stage during plaintiff’s

time at the jail the assault occurred. It does not allege who was present when the

assault occurred. It does not allege how the sheriff would have known about the

assault. It does not allege what specific conditions at the jail constituted a failure

to protect the plaintiff from an assault. And the amended complaint does not

allege how the sheriff or jail officials or staff would have known there was a risk

a pretrial detainee in plaintiff’s position would be assaulted. It may be that it

would not be necessary to plead all of these particulars. But (as will be seen) the

absence of all of them renders plaintiff’s pleading deficient under the standards

this court is required to apply.

Defendants argue that the amended complaint’s failure to allege virtually

any of the particulars of the assault or its circumstances renders plaintiff’s claims

implausible. The court agrees insofar as the § 1983 claim is concerned. Given

the requirements for a successful § 1983 claim set out below, the amended

complaint’s lack of particularity renders the § 1983 claim (failure to protect a

pretrial detainee from an assault) insufficient under Rule 12(b)(6).

First, it is fundamental that personal participation is required for liability

under § 1983 and that there is no respondeat superior liability on the part of a

government entity against which a § 1983 claim is alleged. Monell v. Dept. of

Social Services of City of New York, 436 U.S. 658, 691 (1978). As stated in

Monell, “it is when execution of a government’s policy or custom, whether made

by its lawmakers or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government as an entity is responsible

under § 1983.” Id. at 694. In Monell, the judgment below was reversed (the trial

court and Second Circuit had denied plaintiffs’ claims for backpay on various

grounds) because the case “unquestionably involves official policy as the moving

force of the constitutional violation.” Id. at 694-95. Here, the amended complaint

fails to allege, in non-conclusory terms, facts which, if proven, would establish

that the sheriff in his official capacity had a policy or custom at the jail which was

the moving force behind the alleged assault.

Second, one of the requirements for a § 1983 claim premised on a failure

to prevent harm, is that the plaintiff was detained under conditions that posed a

sufficiently serious risk of the harm that befell her. Lopez v. LeMaster, 172 F.3d

756, 760 (10th Cir. 1999), citing Farmer v. Brennan, 511 U.S. 825, 834 (1970).

Here, the few, non-conclusory factual allegations which are included in the

amended complaint – (that plaintiff was assaulted at the jail by one or more

persons who the amended complaint indicates were jail officers or staff members;

that plaintiff suffered a fractured ankle as a result of the assault; and that jail

recordings were destroyed which presumably would have showed plaintiff at the

jail) – do not satisfy that requirement. These alleged facts say nothing about the

conditions in which plaintiff was detained or how those conditions posed a threat.

Third, liability under § 1983 must be predicated on a deliberate deprivation

of constitutional rights by the defendant rather than on negligence. Kingsley v.

Hendrickson, 83 USLW 4515, 135 S. Ct. 2466, 2472 (2015) (pretrial detainee

case involving excessive force; “liability for negligently inflicted harm is

categorically beneath the threshold of constitutional due process,” citing County

of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). Here, the amended complaint

fails to allege, in non-conclusory terms, any facts which, if proven, would

establish that the sheriff or other jail officials were anything other than negligent,

if that.

In response to these types of lack-of-particularity arguments, plaintiff

argues that res ipsa loquitur applies, a doctrine which permits an inference of

negligence from the proof of certain facts as a means to infer liability. But res ipsa

loquitur is a potential basis for inferring liability for negligence, and negligence

is an insufficient basis for a § 1983 claim. And see, Hovater v. Robinson, 1 F.3d

1063 (10th Cir. 1993), citing: “The ‘mere fact that an assault occurs … does not

establish the requisite indifference to a prisoner’s constitutional rights.’” Id. at

1066, quoting Zatler v. Wainwright, 802 F.2d 397, 403 (11th Cir. 1986). Thus,

plaintiff cannot render her § 1983 claim viable by relying on res ipsa.

After careful consideration of the parties’ arguments with respect to the

§ 1983 claim, the court concludes that a plausible and otherwise sufficient § 1983

claim is not alleged against the sheriff in his official capacity. To the extent that

the sheriff is named as defendant in his official capacity, he is entitled to dismissal

without prejudice from the § 1983 claim. His motion will be granted to that

extent.

C. The Sheriff’s Motion to Dismiss Him in His Individual Capacity.

For largely the same reasons, the amended complaint fails to state a

plausible § 1983 claim against the sheriff in his individual capacity. The amended

complaint alleges no involvement by the sheriff in the assault which fractured

plaintiff’s ankle. Instead, the amended complaint seeks to hold the sheriff liable

in his individual capacity based on his failure to adequately train or supervise his

employees, or as a policy-maker. But these types of § 1983 claims require an

underlying constitutional violation, and the court has already found that the

amended complaint does not plausibly allege one. Moreover, supervisory status

alone does not create § 1983 liability. “[T]here must be ‘an affirmative

link…between the constitutional deprivation and either the supervisor’s personal

participation, his exercise of control or direction, or failure to supervise.’”

Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009), citing Green v.

Branson, 108 F.3d 1296, 1302 (10th Cir. 1997). The amended complaint fails to

allege, in non-conclusory terms, an affirmative link between the sheriff’s failure

to supervise or train, and the failure to protect the plaintiff from an assault. Nor

does the amended complaint include any non-conclusory allegations that

affirmatively link the sheriff, as a policy-maker, to any policy that was the moving

force behind the assault.

The amended complaint does not allege a plausible and otherwise sufficient

§ 1983 claim against the sheriff in his individual capacity. Accordingly, the

sheriff, to the extent he is named in his individual capacity, is entitled to dismissal

without prejudice from the § 1983 claim, and his motion will be granted to that

extent.

Alternatively, the sheriff, in his individual capacity, asserts qualified

immunity. When a defendant asserts qualified immunity at the motion to dismiss

stage, plaintiff, to avoid dismissal, must allege facts that make out a violation of

a constitutional right. Pearson v. Callahan, 555 U.S. 223, 232 (2009). If a

constitutional violation can be made out, then the second step of the analysis

requires the plaintiff to identify clearly established law which put the defendant

on notice that his alleged conduct was unlawful in the situation. Id. Unless

plaintiff carries this burden at both steps, defendant is entitled to qualified

immunity. See, Reynolds v. Powell, 370 F.3d 1028, 1030 (10th Cir. 2004)

(“Unless the plaintiff carries its twofold burden [in that case, at the summary

judgment stage], the defendant prevails”), citing Mick v. Brewer, 76 F.3d 1127,

1134 (10th Cir. 1996).

This order has already found the amended complaint does not allege a

plausible constitutional violation on the part of the sheriff. Thus, plaintiff has not

carried her burden at the first step of the qualified immunity analysis. Nor has

plaintiff made any effort to identify clearly established law which would have put

the sheriff on notice that his actions, as alleged in this case, constituted a

constitutional violation. Furthermore, to the extent the amended complaint

suggests liability on the sheriff’s part based on his supervisory status alone, no

such law exists. The sheriff is entitled to qualified immunity on the § 1983 claim

alleged against him in the amended complaint.

For all of these reasons, the sheriff, in his individual capacity, is entitled to

dismissal without prejudice from the § 1983 claim, and his motion will be granted

to that extent.

D. The § 1983 Claim Against the Doe Defendants

Based on the court’s rulings to this point, the only remaining federal claim

is the § 1983 claim alleged against the Doe defendants.

As previously stated, the amended complaint indicates that one or more of

the Doe defendants committed the alleged assault. The amended complaint,

however, alleges no specifics about how the alleged assault occurred or the

context in which it occurred. The amended complaint uses various terms for the

alleged assault, referring, at different places, to an assault, or to an assault and

battery (the court notes that a battery can be a touch), or to mistreatment, or to

abuse, etc. The two paragraphs of the amended complaint that arguably come

closest to describing the specific role of the Doe defendants, allege as follows:

“That John Doe defendants intentionally and maliciously caused the grievous

injuries suffered by Ms. Brashear” (doc. no. 1-4, ¶ 32); and that it was the board

and sheriff’s violation of policies and procedures by failing to provide proper

training “which resulted in the John Does [sic] defendants [sic] abuse of Ms.

Brashear.” Doc. no. 1-4, ¶ 58. Neither of these paragraphs (nor any others) shed

any real light on the specifics of what the Doe defendants allegedly did to

constitute a violation of plaintiff’s constitutional rights through some type of

unexplained assault.

Given the amended complaint’s lack of particularity about the alleged

constitutional violation committed by the Doe defendants, the amended complaint

fails to plausibly and sufficiently allege a § 1983 claim against these defendants,

who will be dismissed without prejudice from the § 1983 claim.

E. The Result With Respect to the § 1983 Claim

This order has found that all defendants are entitled to dismissal from the

§ 1983 claim. To summarize, the portion of the § 1983 claim that was arguably

premised on an alleged failure to provide medical care and treatment will be

dismissed because plaintiff disavowed any such claim and did not defend this

aspect of her § 1983 claim in response to defendants’ comprehensive Rule

12(b)(6) motions. That dismissal left for consideration plaintiff’s § 1983 claim to

the extent it is premised on defendants’ failure to protect plaintiff from an alleged

assault at the jail. For the reasons stated above, all defendants are entitled to

dismissal from that claim under Rule 12(b)(6). As a result of these rulings, no

federal claim remains for adjudication.9

IV. Supplemental Jurisdiction Declined

With the federal claims dismissed, the court must determine whether to

exercise supplemental jurisdiction over the assault and battery claim. 28 U.S.C.

§1367(c)(3).

Judicial economy, fairness, convenience, and comity are all considerations

which guide a district court’s decision regarding whether to defer to a state court

or retain and dispose of state law claims. United Mine Workers v. Gibbs, 383

U.S. 715, 726-27 (1966). The Tenth Circuit has held that when federal claims are

resolved before trial, the district court should usually decline to exercise

9 Plaintiff is represented by counsel, has already amended once (in state court), and has not

requested leave to amend should the court find any claims subject to dismissal. Although leave

to amend should be liberally granted, a trial court is not required to grant leave to amend, sua

sponte, prior to making its decision to dismiss. Doe v. Heil, 533 Fed. Appx. 831, 846-47 (10th

Cir.2013), unpublished, citing Burger King Corp. v. Weaver, 169 F.3d 1310, 1318 (11th Cir.

2999), and other authorities.

jurisdiction over the remaining state law claims and allow the plaintiff to pursue

them in state court. See, Smith v. City of Enid By and Through Enid City

Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998); Ball v. Renner, 54 F.3d 664, 669

(10th Cir. 1995).

Having disposed of the federal claims prior to trial and finding no

consideration which causes the court to conclude that it should retain jurisdiction

over the state law claim, the court, in the exercise of its discretion, declines to

exercise supplemental jurisdiction over the assault and battery claim. That claim

will be remanded to state court.

V. Conclusion

The motion to dismiss filed by the Board of County Commissioners of

Oklahoma County and Sheriff P. D. Taylor in his official capacity is GRANTED

IN PART. Doc. no. 3. The motion is GRANTED to the extent that these

defendants are DISMISSED from the § 1983 claim.

The motion to dismiss filed by Sheriff P. D. Taylor in his individual

capacity is also GRANTED IN PART. Doc. no. 4. This motion is GRANTED

to the extent that the sheriff, in his individual capacity, is DISMISSED from the

§ 1983 claim.

The Doe defendants are DISMISSED from the § 1983 claim.

All of the dismissals described above are under Rule 12(b)(6), Fed. R.

Civ. P., and are without prejudice, except that the federal claim against the Board

of County Commissioners is dismissed with prejudice.

The court declines supplemental jurisdiction over the assault and battery

claim. Accordingly, this court does not have jurisdiction over, and does not

address, the merits of the motions to the extent that they challenge the sufficiency

of the assault and battery claim.

This action is REMANDED to the District Court of Oklahoma County,

State of Oklahoma.

IT IS SO ORDERED this 5" day of August, 2019.

STEPHEN P. FRIOT .

UNITED STATES DISTRICT JUDGE

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