# Pendleton v. Oklahoma County Board of County Commissioners

> District Court, W.D. Oklahoma · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10387850

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 30, 2019
- **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/10387850

## How later opinions describe it (automated extraction)

- observing that “[w]hen filed with the excise board, the county budget constitutes an appropriation for each of the included items”
- explaining that “[t]he County Budget Act gives absolutely no textual indication of how much authority over the budget is delegated or retained by the board of county commissioners” (emphasis omitted)
- finding that at summary judgment stage objective component of Eighth Amendment claim was satisfied by evidence that understaffing and lack of inmate monitoring had led to previous attacks at the jail
- affirming summary judgment on a failure-to- train-and-supervise claim where plaintiff failed to identify his jailer or to tie any specific lack of training or poor supervision of his jailers to his injury

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

MAE PENDLETON, Special )
Administrator of the Estate of )
Maurice Pendleton, Deceased, )
)
Plaintiff, )
)
v. ) Case No. CIV-18-707-G
)
BOARD OF COUNTY )
COMMISSIONERS FOR )
OKLAHOMA COUNTY, et al., )
)
Defendants. )

OPINION AND ORDER
Now before the Court are the following motions: (1) Motion to Dismiss of
Defendant P.D. Taylor in His Official Capacity as Sheriff of Oklahoma County (Doc. No.
5); (2) Motion to Dismiss of Defendant Taylor in His Individual Capacity (Doc. No. 6); (3)
Motion to Dismiss of Defendant Board of County Commissioners for Oklahoma County
(Doc. No. 7); (4) Motion to Dismiss of Defendants Willa Johnson, Brian Maughan, and
Ray Vaughn in Their Official Capacities as County Commissioners of Oklahoma County
(Doc. No. 8); and (5) Motion to Dismiss of Defendants Johnson, Maughan, and Vaughn in
Their Individual Capacities (Doc. No. 9). Plaintiff has submitted four Responses in
opposition (Doc. Nos. 14, 15, 16, 17). After considering the parties’ arguments and the
governing law, the Court determines that the Motions should be granted in part and denied
in part, as set forth more particularly below.
SUMMARY OF THE PLEADINGS
Plaintiff Mae Pendleton filed this lawsuit as Special Administrator for the Estate of
her son, Maurice Pendleton, who was beaten to death by fellow inmates while in pretrial

custody at the Oklahoma County Detention Center (the “OCDC”). Plaintiff alleges that,
on or about July 18, 2017, Mr. Pendleton was “locked inside a converted basketball court
used as a holding pen for inmates facing disciplinary sanctions.” Compl. (Doc. No. 1-2)
¶¶ 16, 23. The holding area “was not supervised by any jail staff,” and inmates were “left
unrestrained to freely roam about without restriction or oversight.” Id. ¶ 18. While locked

in the holding area, Mr. Pendleton “was confronted and attacked by at least four inmates,”
three of whom were “awaiting disciplinary hearings for attacking other inmates” and all of
whom had a known “history of violence.” Id. ¶¶ 19-20. The attackers “savagely beat[]”
Mr. Pendleton, “kick[ing] [him] repeatedly in the head and body,” while “stripping him
naked.” Id. ¶¶ 21-22. When jailers arrived, Mr. Pendleton was “still alive and

consci[ous]”; however, he died several hours later from a traumatic head injury. Id. ¶¶ 23,
25.
Defendants include the Board of County Commissioners for Oklahoma County,
Oklahoma (the “Board”); County Commissioners Willa Johnson, Brian Maughan, and Ray
Vaughn (collectively, the “Commissioners”),1 in both their official and individual

1 After this lawsuit was filed, Carrie Blumert and Kevin Calvey replaced Defendants
Johnson and Vaughn as County Commissioners. Pursuant to Federal Rule of Civil
Procedure 25(d), Ms. Blumert and Mr. Calvey are hereby substituted for those Defendants
on all remaining official-capacity claims alleged against them. To reduce confusion, the
undersigned refers herein to all parties as they are identified in the Complaint.
capacities; and Oklahoma County Sheriff P.D. Taylor, in both his official and individual
capacities. Plaintiff alleges Defendants had “actual notice” that inadequate staffing and
monitoring at the OCDC were “likely to result in inmate-on-inmate violence” and, despite

having such knowledge, failed to allocate funding to address the deficiencies. Id. ¶ 41.
Plaintiff alleges: “Either the Board failed to adequately fund Taylor’s office to fulfill its
constitutional duty to provide a facility that was adequate for the safekeeping of inmates,
or Taylor’s office squandered taxpayer money on luxuries instead of correcting the
deficiencies.” Id. ¶ 40.

Plaintiff seeks “a declaration that conditions of confinement at the OCDC caused
the death of Maurice Pendleton and deprived him of the fundamental constitutional right
to safety and bodily integrity.” Id. ¶ 2. She also seeks damages for the alleged federal and
state constitutional deprivations under 42 U.S.C. § 1983 and Bosh v. Cherokee County
Governmental Building Authority, 305 P.3d 994 (Okla. 2013), respectively. See id. ¶ 3.

ANALYSIS
I. The Rule 12(b)(5) Motion
The Commissioners first contend that dismissal of the claims raised against them in
their individual capacities is required under Federal Rule of Civil Procedure 12(b)(5)
because Plaintiff failed to properly serve them with this lawsuit.

Personal service under Rule 4 of the Federal Rules of Civil Procedure “notif[ies] a
defendant of the commencement of an action against him.” Okla. Radio Assocs. v. Fed.
Deposit Ins. Corp., 969 F.2d 940, 943 (10th Cir. 1992). Further, such service “provides
the mechanism” for the court to “assert[] jurisdiction over the person of the party served.”
Id.; see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51
(1999). A Rule 12(b)(5) motion challenges the plaintiff’s mode of serving process on the
moving party. Craig v. City of Hobart, No. CIV-09-53-C, 2010 WL 680857, at *1 (W.D.

Okla. Feb. 24, 2010) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 1353 (3d ed. 2004)). In opposing a Rule 12(b)(5) motion, the plaintiff bears
the burden of showing that he or she “complied with all statutory and due process
requirements.” Id. “Motions under Federal Rules 12(b)(4) and 12(b)(5) differ from the
other motions permitted by Rule 12(b) somewhat in that they offer the district court a

course of action—quashing the process without dismissing the action—other than simply
dismissing the case when the defendant’s defense or objection is sustained.” 5B Wright &
Miller, supra, § 1354; accord Gray v. Ritter, No. CIV-09-909-F, 2010 WL 4880890, at *2
(W.D. Okla. Oct. 8, 2010).
Pursuant to Federal Rule of Civil Procedure 4(e)(1), service may be made upon an

individual within a judicial district of the United States by “following state law for serving
a summons in an action brought in courts of general jurisdiction in the state where the
district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). Thus, service
upon these Defendants in accordance with the Oklahoma Pleading Code would satisfy Rule
4.

Pursuant to the Oklahoma Pleading Code, a summons and initial pleading may be
served by “certified mail, return receipt requested and delivery restricted to the addressee.”
Okla. Stat. tit. 12, § 2004(C)(2)(b). The Commissioners’ Motion argues that Plaintiff failed
to comply with Oklahoma’s service statute because Plaintiff served the Petition and
Summons by unrestricted (as opposed to restricted) certified mail. See Comm’rs Indiv.
Capacity Mot. (Doc. No. 9) at 5-6.2 The Commissioners have not supplied the executed
summonses to the Court, and Plaintiff has not filed the executed returns of service as

required by Federal Rule of Civil Procedure 4(l).
Plaintiff does not dispute, however, that service was improper under Oklahoma law.
See Pl.’s Resp. to Comm’rs Indiv. Capacity Mot. (Doc. No. 15) at 6-7. Plaintiff nonetheless
argues that, absent any allegation that the deficiency has denied these Defendants due
process, dismissal is unwarranted. The Court agrees.

“Strict compliance with the Oklahoma statutory scheme is not required for service
to be proper[.]” Bristow First Assembly of God v. BP p.l.c., 210 F. Supp. 3d 1284, 1292
(N.D. Okla. 2016). Instead, Oklahoma courts adhere to a rule of “substantial compliance.”
Graff v. Kelly, 814 P.2d 489, 495 (Okla. 1991); Free v. Okla. Dep’t of Corrs., No. CIV-13-
87-F, 2014 WL 347627, at *4 (W.D. Okla. Jan. 30, 2014). “To determine whether

substantial compliance has occurred, the court must consider the circumstances and
determine whether the found departure offends the standards of due process and thus may
be deemed to have deprived a party of its fundamental right to notice.” Bristow, 210 F.
Supp. 3d at 1292 (internal quotation marks omitted). In other words, the court must find
that the deficient service nonetheless fairly apprised the defendant of the lawsuit and the

consequences attendant to default. Id.
Both the Tenth Circuit and the Oklahoma Court of Civil Appeals have recognized

2 References to the parties’ filings use the ECF pagination.
that the statutory requirement of restricted delivery is not essential, so long as the defendant
had actual notice of the pending litigation. See Nikwei v. Ross Sch. of Aviation, Inc., 822
F.2d 939, 943-44 (10th Cir. 1987) (rejecting defendant’s argument that “service was fatally

defective” under prior Oklahoma statute because “plaintiffs did not request a return receipt
from addressee only” where “the evidence demonstrated that the defendant himself was
served”); Coulsen v. Owens, 125 P.3d 1233, 1237 (Okla. Civ. App. 2005) (holding that
“service [was] valid,” despite the fact that “the certified mail delivery was not designated
‘restricted,’” where “there was no dispute that Defendant received the summons and

petition”).
As in Niwei and Coulsen, the record in this case reflects that the Commissioners
received actual notice of Plaintiff’s lawsuit and are otherwise unprejudiced by Plaintiff’s
technical deficiency. Accordingly, the Court concludes that Plaintiff substantially
complied with Oklahoma’s service statute, the requested relief of dismissal or quashing of

service is unwarranted, and the Court may exercise personal jurisdiction over the
Commissioners.
II. The Rule 12(b)(1) Motions
The Board and the Commissioners argue that the Court lacks subject-matter
jurisdiction over Plaintiff’s claims because Plaintiff lacks standing to sue as her injury is

not traceable to the Board. See Bd. Mot. (Doc. No. 7) at 12-20; Comm’rs Official Capacity
Mot. (Doc. No. 8) at 11-17; Comm’rs Indiv. Capacity Mot. at 15-19. The crux of this
argument is that, because the Board “has no express statutory authority to act in areas of
jail operations,” the injury alleged is not “traceable to the [Board’s] acts or omissions” or
to the conduct of any individual Commissioner. Bd. Mot. at 15. These Defendants argue
that they do not exercise supervisory authority over Defendant Taylor as Sheriff, that
Plaintiff is not complaining about any policies of the Board, and that Plaintiff cannot

establish that her injuries “are fairly traceable to conduct of [the Board],” and thus the
Board and the Commissioners are not proper parties to this lawsuit. Id.
This standing argument conflates the justiciability of a plaintiff’s lawsuit with the
plaintiff’s ultimate ability to prove a defendant’s liability in that lawsuit. Cf. Kauble v. Bd.
of Cty. Comm’rs of Cty. of Okla., No. CIV-17-729-D, 2018 WL 912285, at *3 (W.D. Okla.

Feb. 15, 2018) (“While couched in terms of subject matter jurisdiction, [the Oklahoma
County Board of County Commissioners’] argument [that the plaintiff lacks Article III
standing to sue], in reality, is premised on the notion that [the plaintiff] has failed to state
a claim upon which relief can be granted because [the Oklahoma County Board of County
Commissioners] has no authority to act in areas of detaining or releasing inmates.”);

Thurman v. Cty. Comm’rs of Okla. Cty., No. CIV-17-950-M, 2018 WL 6237908, at *3
(W.D. Okla. Oct. 16, 2018) (R. & R.) (same), adopted, 2018 WL 6220213 (W.D. Okla.
Nov. 28, 2018).
This type of standing argument has been repeatedly rejected by this Court:
Under Oklahoma law, a county’s board of county commissioners is
not a separate legal entity from the county. Rather, in general, it
exercises the powers of the county. 19 Okla. Stat. § 3. A suit brought
against a county’s board of county commissioners is the way
Oklahoma law contemplates suing the county. 19 Okla. Stat. § 4.
Moreover, in the § 1983 context, a suit against the board of county
commissioners or some other county official in their official capacity
is, in substance, a suit against the county. . . . .
The motion filed by the Board of County Commissioners confuses the
issue by arguing that it (the Board) is not a “proper party,” essentially
because it didn't do anything wrong, or fail to do anything it had a
duty to do. But, as noted above, the Board, as such, is not even a legal
entity and obviously cannot be a “party” regardless of what it did or
didn’t do. Rather, the question is whether a basis for claim against the
county is stated.
Snow v. Bd. of Cty. Comm’rs of Cty. of McClain, No. CIV-14-911-HE, 2014
WL 7335319, at *2 (citing DuBois v. Bd. of Cty. Comm’rs of Mayes Cty.,
No. 12-CV-677-JED-PJC, 2014 WL 4810332 (N.D. Okla. Sept. 29, 2014)).
Cramer v. Okla. Cty. Bd. of Cty. Comm’rs, No. CIV-18-179-G, 2019 WL 1937602, at *5-
6 (W.D. Okla. May 1, 2019) (citation omitted).
Plaintiff has plausibly alleged that the County, through its Board of three
Commissioners, is responsible for providing and funding a jail for Oklahoma County and
failed to properly fulfill that responsibility. See, e.g., Compl. ¶¶ 5, 32-34, 50. Further, as
explained below, Plaintiff has plausibly alleged a claim against Oklahoma County, acting
through Defendant Taylor, regarding the operation of the Jail. See, e.g., id. ¶¶ 6, 42.
“Although it is true that in certain circumstances a board of county
commissioners may be an improper party because its policies or customs
cannot be shown to be responsible for an alleged constitutional violation, that
does not mean that a board can never be a proper party as a matter of law.”
Kauble, 2018 WL 912285, at *4; accord Chichakli v. Samuels, No. CIV-15-
687-D, 2016 WL 11447755, at *3 (W.D. Okla. Mar. 10, 2016) (R. & R.)
(“Grady County can be held liable notwithstanding the fact that the Grady
County Board of County Commissioners, itself, does not operate the jail or
promulgate the policies attendant thereto.”), adopted, 2016 WL 2743542
(W.D. Okla. May 11, 2016). “The United States Supreme Court has made it
clear that any official or entity whose actions represent official policy may
be liable under § 1983.” Vernon v. Slabosky, No. CIV-11-815-HE, 2016 WL
4775739, at *14 (W.D. Okla. Sept. 14, 2016) (citing Pembauer v. City of
Cincinnati, 475 U.S. 469, 480 (1986)).
Cramer, 2019 WL 1937602, at *6.
The request to dismiss Plaintiff’s claims under Rule 12(b)(1) is therefore denied.
III. The Rule 12(b)(6) Motions
A. Applicable Standard

Federal Rule of Civil Procedure 12(b)(6) prescribes that a defendant may seek
dismissal when the plaintiff “fail[s] to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). In analyzing a motion to dismiss under Rule 12(b)(6), the court
“accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in
the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc.,

706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief
may be granted when it lacks factual allegations sufficient “to raise a right to relief above
the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“[T]o

withstand a motion to dismiss, a complaint must contain enough allegations of fact to state
a claim that is plausible on its face.” (internal quotation marks omitted)). Bare legal
conclusions in a complaint are not entitled to the assumption of truth; “they must be
supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).

B. Plaintiff’s Federal Constitutional Claims
Plaintiff’s federal claims are asserted pursuant to 42 U.S.C. § 1983, the “remedial
vehicle for raising claims based on the violation of [federal] constitutional rights.” Brown
v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016). “To state a claim under § 1983, a
plaintiff must allege the violation of a right secured by the Constitution and laws of the
United States” and “must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

The Tenth Circuit has explained “that neither prison officials nor municipalities can
absolutely guarantee the safety of their prisoners. They are, however, responsible for
taking reasonable measures to insure the safety of inmates.” Lopez v. LeMaster, 172 F.3d
756, 759 (10th Cir. 1999) (citation omitted) (citing Farmer v. Brennan, 511 U.S. 825, 832-
33 (1994)).

Plaintiff asserts that Defendants are liable for failing to protect Mr. Pendleton while
he was detained at OCDC and argues that Mr. Pendleton’s beating and death “resulted from
constitutionally infirm conditions at the jail.” Id. at 760; see Compl. ¶¶ 62-63, 70-71.3
Although Mr. Pendleton was a pretrial detainee and therefore subject to protection under
the Fourteenth Amendment’s Due Process Clause, the Court applies an analysis identical

to that applied to the Eighth Amendment claims brought by convicted prisoners. See
Lopez, 172 F.3d at 759 n.2.4 To establish his claim, Plaintiff must show: (1) that Mr.

3 The pleading also references “inadequate supervision,” but the supporting factual
allegations clarify that this phrase is a contention that inmates were inadequately
supervised while housed at OCDC—i.e., an example of an infirm condition of confinement
and a failure to protect—rather than a theory of liability premised upon a lack of training
or supervision of jailers resulting in specific acts or omissions by those jailers. Compare
Compl. ¶ 67 (claiming that Mr. Pendleton, as a detainee, had a “right to adequate
supervision”), with Lopez, 172 F.3d at 760 (affirming summary judgment on a failure-to-
train-and-supervise claim where plaintiff failed to identify his jailer or to tie any specific
lack of training or poor supervision of his jailers to his injury).
4 Plaintiff argues that for pretrial detainees the traditional deliberate-indifference standard
should be abandoned in favor of an objective-only standard. See Pl.’s Resp. to Taylor
Indiv. Capacity Mot. (Doc. No. 14) at 12-13 (citing Kingsley v. Hendrickson, 135 S. Ct.
Pendleton was “incarcerated under conditions posing a substantial risk of serious harm,”
Farmer, 511 U.S. at 834; and (2) that Defendants acted with “deliberate indifference” to
his safety—i.e., that Defendants were “aware of and disregarded an excessive risk” to his

safety “by failing to take reasonable measures to abate the risk.” Lopez, 172 F.3d at 761
(citing Farmer, 511 U.S. at 847); see also DeSpain v. Uphoff, 264 F.3d 965, 971-72 (10th
Cir. 2001). Whether prison conditions pose a “substantial risk of serious harm” is
evaluated objectively, while the “deliberate indifference” inquiry is evaluated subjectively.
Farmer, 511 U.S. at 834. All Defendants have argued that Plaintiff has not adequately pled

these elements of her claim. The Court first considers Plaintiff’s pleading of these aspects
of her claim and then addresses Defendants’ additional arguments for dismissal.
1. Whether Mr. Pendleton Was Incarcerated Under Conditions Posing a
Substantial Risk of Serious Harm

“The Eighth Amendment ‘does not mandate comfortable prisons,’ and conditions
imposed may be ‘restrictive and even harsh.’” Barney v. Pulsipher, 143 F.3d 1299, 1311
(10th Cir. 1998) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Therefore, to
establish an Eighth Amendment violation, a plaintiff “must show that conditions were more
than uncomfortable, and instead rose to the level of ‘conditions posing a substantial risk of

2466 (2015)). Kingsley, an excessive-force case, did not directly address the standard
applicable to a pretrial detainee’s conditions-of-confinement claim, and the Tenth Circuit
has noted that circuits “are split on whether Kingsley alters the standard for conditions of
confinement and inadequate medical care claims brought by pretrial detainees.” Estate of
Vallina v. Cty. of Teller Sheriff’s Office, 757 F. App’x 643, 646 (10th Cir. 2018). Further,
the Tenth Circuit “has not yet ruled directly on this issue.” Burke v. Regalado, No. 18-CV-
231-GKF-FHM, 2019 WL 1371144, at *4 (N.D. Okla. Mar. 26, 2019). The Court therefore
follows established Tenth Circuit precedent in evaluating this claim (which survives even
under the dual-prong standard, as discussed below). See id.
serious harm’ to inmate health or safety.” DeSpain, 264 F.3d at 973 (citing Farmer, 511
U.S. at 834).
Plaintiff alleges that Mr. Pendleton was incarcerated under conditions that left him

vulnerable to attack by inmates with a history of violent behavior, both generally and
towards other inmates. See Compl. ¶¶ 16-25. Such conditions include, without limitation,
inadequate staffing, insufficient monitoring of inmates, and failure to segregate or
otherwise restrain inmates with known violent tendencies. See id. ¶¶ 18, 21. Plaintiff
further alleges that these conditions fostered previous incidents of inmate-on-inmate

violence at the OCDC, which in some cases resulted in death. See id. ¶ 54 & n.13.
These allegations, the truth of which is presumed at this stage in the litigation, satisfy
the objective component of Plaintiff’s failure-to-protect and conditions-of-confinement
claims. See Lopez, 172 F.3d at 761 (finding that at summary judgment stage objective
component of Eighth Amendment claim was satisfied by evidence that understaffing and

lack of inmate monitoring had led to previous attacks at the jail); Morgan v. Bd. of Cty.
Comm’rs of Okla. Cty., No. CIV-08-1317-R, 2010 WL 11508854, at *2 (W.D. Okla. Mar.
11, 2010) (holding that at summary judgment stage objective component of Eighth
Amendment claim was satisfied by evidence that decedent was housed in a cell with an
inmate who had been charged with violent crimes and who had a history of violent and

psychotic episodes); cf. Martinez v. Beggs, 563 F.3d 1082, 1088-89 (10th Cir. 2009)
(plaintiff’s death was “sufficiently serious” to satisfy the objective component for claim of
deliberate indifference to serious medical needs).
2. Whether Defendants Acted with Deliberate Indifference to Mr.
Pendleton’s Health or Safety

The Supreme Court has explained that, while deliberate indifference “entails
something more than mere negligence,” it “is satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge that harm will result.”
Farmer, 511 U.S. at 835. To impose Eighth Amendment liability, a plaintiff must
demonstrate that the defendant knew about and disregarded “an excessive risk to inmate
health or safety.” Id. at 837. The defendant “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.” Id.
Whether a defendant knew about and ignored a substantial risk is generally a

question of fact. DeSpain, 264 F.3d at 975 (citing Farmer, 511 U.S. at 842). “Because it
is difficult, if not impossible, to prove another person’s actual state of mind,” the
defendant’s knowledge of the risk “may be inferred from circumstantial evidence.” Id. At
the pleading stage, however, it is enough that the existence of such knowledge is “‘averred
generally’ in the complaint.” Kikumura v. Osagie, 461 F.3d 1269, 1293-94 (10th Cir.

2006) (citing Fed. R. Civ. P. 9(b)), overruled on other grounds as recognized in Robbins,
519 F.3d at 1246.
Plaintiff alleges that Defendants “have known about inadequate supervision at the
OCDC since 1995.” Compl. ¶ 49; see also id. ¶¶ 41 (“the Board, Commissioners, Taylor,
and Taylor’s office had actual notice of deficiencies likely to result in inmate-on-inmate

violence”), 58 (“[t]he deadly dangers have been known to the Oklahoma County for more
than 20 years”). Plaintiff further alleges, upon information and belief, that Defendants had
“reviewed” a number of publications documenting “an inordinately high risk of detainee-
on-detainee violence” at the OCDC due to understaffing and lack of inmate monitoring.

Id. ¶¶ 42, 59; see also id. ¶¶ 44 (alleging that a grand jury admonished the County in 1995
publication regarding the practice of “leaving entire pods with no physical supervision for
several hours”), 45 (alleging that the federal government advised the County in 1998 of a
failure to “consistently staff[]” security posts and a failure to conduct “sight checks . . . as
frequently as needed”), 54 n.13 (citing four publications documenting inmate-on-inmate

violence at the OCDC).
Defendants’ arguments to the contrary are unavailing. Defendants first contend that
Plaintiff’s claims fail for want of allegations “that the inmates who attacked [Mr.
Pendleton] posed a specific risk of harm that was personal to [him] . . . in particular.” See
Taylor Official Capacity Mot. (Doc. No. 5) at 15-16; Taylor Indiv. Capacity Mot. (Doc.

No. 6) at 14; Bd. Mot. at 25; Comm’rs Official Capacity Mot. at 22; Comm’rs Indiv.
Capacity Mot. at 23. But “knowledge of the risk need not be knowledge of a substantial
risk to a particular inmate, or knowledge of the particular manner in which injury might
occur.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). And “it does not matter . .
. whether a prisoner faces an excessive risk of attack for reasons personal to him or because

all prisoners in his situation face such a risk.” Farmer, 511 U.S. at 843.
Defendants next submit that “insufficient funding for jail functions and/or improper
expenditure of funds” “cannot serve as a basis for constitutional tort liability.” See Taylor
Official Capacity Mot. at 17; Taylor Indiv. Capacity Mot. at 16; Bd. Mot. at 27; Comm’rs
Official Capacity Mot. at 24; Comm’rs Indiv. Capacity Mot. at 25. While budget
appropriations and expenditures are not a “condition of confinement” per se, such
appropriations and expenditures do, as Defendants concede, “impact certain conditions of

confinement,” and can therefore produce unconstitutional jail conditions, albeit indirectly.
Thus, in Lopez v. LeMaster, the plaintiff was permitted to proceed on a theory that
“understaffing, lack of monitoring equipment or lack of a means by which inmates could
contact guards” created “constitutionally inadequate conditions at the jail,” which
increased the likelihood of inmate-on-inmate violence. Lopez, 172 F.3d at 760.

Finally, Defendants challenge the premise that “additional staffing and/or better
monitoring might have prevented the assault.” Defendants criticize Plaintiff for “mak[ing]
no factual allegations concerning the number of staff dedicated to the jail, the number of
staff assigned to the floor on which Plaintiff was in temporary housing, or the number of
staff available to respond to emergency situations as backup.” Taylor Official Capacity

Mot. at 18; Taylor Indiv. Capacity Mot. at 17; Bd. Mot. at 28; Comm’rs Official Capacity
Mot. at 25; Comm’rs Indiv. Capacity Mot. at 26. But the plausibility required for pleading
a claim “does not impose a probability requirement”; “it simply calls for enough fact to
raise a reasonable expectation that discovery will reveal evidence of” the conduct alleged
in support of the claim. Twombly, 550 U.S. at 556. Plaintiff has satisfied this burden by

alleging that unconstitutional conditions at the OCDC, including insufficient staffing and
monitoring of inmates, created the conditions for the attack that caused Mr. Pendleton’s
death. See Compl. ¶¶ 18, 21. At this stage in the litigation, Plaintiff is not required to set
forth “detailed factual allegations.” Twombly, 550 U.S. at 555. Nor is she required to
prove causation. See Medina-Velázquez v. Hernández-Gregorat, 767 F.3d 103, 111 (1st
Cir. 2014) (noting that at the pleading stage, a plaintiff “need not establish causation”;
rather, “[t]he facts contained in the complaint need only show that the claim of causation

is plausible” (internal quotation marks omitted)).
These allegations, taken as true, demonstrate Defendants’ awareness that the
conditions at the OCDC posed a substantial risk of serious harm to Mr. Pendleton and that,
despite such awareness, Defendants disregarded that risk. Accordingly, Plaintiff has
satisfied her pleading burden on the subjective component of her claims.

3. Official-Capacity Claims Against Defendant Taylor and the
Commissioners
Defendant Taylor and Defendant Commissioners assert that because Plaintiff is
suing the Board, Plaintiff’s official-capacity claims against the County officials are
redundant and should be dismissed. See Stout v. U.S. ex rel. U.S. Marshal’s Serv., No.
13CV753 WJ/GBW, 2013 WL 5954780, at *2 (W.D. Okla. Nov. 4, 2013) (“An action filed
against a state official in his or her official capacity is simply another way of pleading an
action against an entity of which an officer is an agent.”). Such claims are generally
“duplicative and unnecessary” given that Plaintiff “has named [the Board] as a defendant.”

Brashear v. Tulsa Cty. Bd. of Cty. Comm’rs, No. 15-CV-473-GKF-PJC, 2016 WL 633374,
at *4 (N.D. Okla. Feb. 17, 2016); see also Okla. Stat. tit. 19, § 4 (“In all suits or proceedings
by or against a county, the name in which a county shall sue or be sued shall be, ‘Board of
County Commissioners of the County of ____ . . . .”); Cramer, 2019 WL 1937602, at *5
n.5.5
Plaintiff submits that her official-capacity claims—at least those asserted against
the Commissioners—are neither duplicative nor unnecessary because there is a “material

difference . . . between damages available [for] federal claims against the Board, and
damages available against commissioners in their official capacity.” Pl.’s Resp. to Bd.
Mot. & Comm’rs Official Capacity Mot. (Doc. No. 16) at 17 (citing Youren v. Tintic Sch.
Dist., 343 F.3d 1296 (10th Cir. 2003)). In Youren, the Tenth Circuit held that “the district
court erred in preventing the jury from considering the imposition of punitive damages”

against a government employee sued in her official capacity. Youren, 343 F.3d at 1309.
This aspect of Youren has not been overturned but has repeatedly “been called into question
by lower courts,” Estep v. City of Del City ex rel. Del City Police Dep’t, No. CIV-17-625-
M, 2018 WL 1598674, at *4 (W.D. Okla. Mar. 30, 2018), and, in fact, by the Tenth Circuit
itself. See Cross Continent Dev., LLC v. Town of Akron, 548 F. App’x 524, 531 (10th Cir.

2013) (characterizing Youren as “an anomalous outlier” and reasoning that if “an official-
capacity suit is, in all respects other than name, to be treated as a suit against the entity, and
a municipality is immune from punitive damages under 42 U.S.C. § 1983, then individuals
sued in their official capacity should be immune from punitive damages as well” (internal
quotation marks omitted)). This Court and others have disallowed redundant official-

capacity suits despite Youren’s anomalous holding See, e.g., Morris v. Humphrey, No.

5 “A § 1983 action appropriately is pleaded against a municipality either by naming the
municipality itself or by naming a municipal official in his or her official capacity.” Stout,
2013 WL 5954780, at *2 (alteration and internal quotation marks omitted).
CIV-14-497-W, 2014 WL 3451033, at *1 n.3 (W.D. Okla. July 11, 2014) (acknowledging
Youren but dismissing official-capacity claim as redundant of claim against the
municipality); Cooper v. Cagle, No. CIV-06-881-C, 2007 WL 2840385, at *3 (W.D. Okla.

Sept. 27, 2007) (acknowledging Youren and nonetheless dismissing punitive-damages
claim against state actors sued in their official capacities).
Given the Tenth Circuit’s published position on the matter and the pleading’s stated
claim for punitive damages, see Compl. ¶ 74(B), however, the Court declines to dismiss
these official-capacity claims at this early stage of the proceedings. The Court will reassess

this request for dismissal at a later stage of the proceedings if necessary. See Estep, 2018
WL 1598674, at *4.
4. Municipal Liability Claims
Defendant Board and the individual Defendants in their official capacities seek
dismissal on the basis that Plaintiff has failed to adequately allege municipal liability on

the part of the County under the rubric established in Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978). Under Monell, a government entity is
not liable under § 1983 for injury “inflicted solely by its employees or agents.” Id. at 694.
Rather, to hold Oklahoma County liable on Plaintiff’s claims, Plaintiff must show “(1) the
existence of a county policy or custom by which [Plaintiff] was denied a constitutional

right, and (2) that the policy or custom was the moving force behind the constitutional
deprivation[—]i.e. that there is a direct causal link between the policy or custom and the
injury alleged.” Snow, 2014 WL 7335319, at *2 (internal quotation marks omitted). “A
challenged practice may be deemed an official policy or custom for § 1983 municipal-
liability purposes if it is a formally promulgated policy, a well-settled custom or practice,
a final decision by a municipal policymaker, or deliberately indifferent training or
supervision.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th

Cir. 2013).
i. Whether Plaintiff Has Alleged Acts or Omissions by an Official with
Final Policymaking Authority

As Sheriff of Oklahoma County, Defendant Taylor has final policymaking authority
with respect to jail operations at the OCDC, including “staffing and [the] monitoring of
inmates.” Lopez, 172 F.3d at 763 (citing Okla. Stat. tit. 19, § 513; id. tit. 57, § 47). Plaintiff
alleges acts and omissions by Taylor that fall within the scope of this authority—namely,
that Taylor did not use available funds to ensure adequate staffing and inmate supervision.
Compl. ¶ 40; see also id. ¶¶ 34-39, 41-50. “[A] plaintiff may be able to demonstrate an
official ‘policy or custom’ for § 1983 purposes through reference to ‘a final decision’ by a
county policymaker.” Cramer, 2019 WL 1937602, at *6 (quoting Schneider, 717 F.3d at
770).
Plaintiff’s alternative theory is that the Board “failed to adequately fund Taylor’s

office,” making it impossible “to provide a facility that was adequate for the safekeeping
of inmates.” Id. ¶ 40. The Board is statutorily obligated to provide a “jail . . . for the
safekeeping of prisoners lawfully committed.” Okla. Stat. tit. 57, § 41. This obligation
necessarily encompasses the appropriation of funds for jail operations. See Lopez, 172
F.3d at 763 (referencing testimony that “the county commissioners failed to provide

funding for correction of deficiencies at the jail . . . even though such funding was required
by the Oklahoma statutes”); Vernon, 2016 WL 4775739, at *14 (noting that title 57, section
41 of the Oklahoma Statutes impose a duty to appropriate funds to discharge the Board’s
responsibility for providing a jail for the safekeeping of inmates).

While the Board resists the allegation that it has “non-delegable statutory
responsib[ility]” to provide an adequate jail, Compl. ¶ 5, it acknowledges its role in
preparing the OCDC’s operational budgets for approval by the County’s excise board. See
Bd. Mot. at 10. It is thus apparent that the Board exercises some degree of policymaking
authority with respect to operational funding at the OCDC. Accord State ex rel. Macy v.

Bd. of Cty. Comm'rs of Cty. of Okla., 986 P.2d 1130, 1135 (Okla. 1999) (observing that
“[w]hen filed with the excise board, the county budget constitutes an appropriation for
each of the included items”); Harper v. Woodward Cty. Bd. of Cty. Comm’rs, No. CIV-11-
0996, 2014 WL 7399367, at *9 (W.D. Okla. Dec. 29, 2014) (explaining that “the county’s
board of commissioners sets policies, including fiscal policies, that may be implicated in a

violation of a county inmate’s federal rights”). The precise degree of that authority, and
whether it renders the Board a policymaker under Monell, involves factual questions that
the Court is unable to resolve on the pleadings. See Kauble, 2018 WL 912285, at *4; cf.
Macy, 986 P.2d at 1135 (explaining that “[t]he County Budget Act gives absolutely no
textual indication of how much authority over the budget is delegated or retained by the

board of county commissioners” (emphasis omitted)). At this stage in the litigation, it is
enough that Plaintiff has alleged inaction and failures by the Board with respect to its
policymaking function in the overall budgeting process.
ii. Whether Plaintiff Has Alleged an Official Policy or Custom

Plaintiff also alleges that Mr. Pendleton’s death resulted from unconstitutional
policies or practices, such as understaffing and failure to supervise inmates. See, e.g.,
Compl. ¶ 71 (alleging that Defendants “enact[ed] policies or practices that . . . deprived
[Mr. Pendleton] of the right to life and liberty”); ¶ 63 (alleging that Defendants “adopt[ed]
policies and/or practices that . . . permitt[ed] or require[d] jailers to house non-violent
pretrial detainees in unsupervised locations with unrestrained inmates known to harbor a
propensity for inmate-on-inmate violence”).

“A challenged practice may be deemed an official policy or custom” “if it is a
formally promulgated policy, a well-settled custom or practice,” or deliberately indifferent
supervision. Schneider, 717 F.3d at 770. As detailed above, Plaintiff has alleged that, in
the past 20 years, understaffing and inadequate inmate supervision at the OCDC has caused
a high degree of inmate-on-inmate violence, including attacks that resulted in death. See

Compl. ¶¶ 41, 42, 44, 45, 49, 54 n.13, 59. These allegations are sufficient to plead a policy
or practice of understaffing and/or inadequate supervision of inmates. See Lopez, 172 F.3d
at 763 (at summary-judgment stage, evidence that understaffing and lack of inmate
monitoring had led to previous attacks at the jail was sufficient to establish “that the county
maintains an unconstitutional policy of understaffing its jail and of failing to monitor
inmates”).
5. Individual-Capacity Claims Against Defendant Taylor and the
Commissioners
To state an individual-capacity claim under § 1983, a plaintiff must allege facts to
establish the defendant’s personal involvement in the asserted violation of federal rights.
Schneider, 717 F.3d at 768. Likewise, to state a claim for supervisor liability, a plaintiff

must allege facts showing an “‘affirmative link’ between the supervisor and the
constitutional violation.” Id. at 767. To impose individual liability—irrespective of
whether such liability is based on a failure-to-supervise theory—the plaintiff must allege
facts showing: (1) the defendant’s personal involvement; (2) a sufficient causal connection;
and (3) a culpable state of mind. Id.; see also Moya v. Garcia, 895 F.3d 1229, 1233 (10th

Cir. 2018) (explaining that supervisors could be “personally involved in the underlying
violations through their own participation or supervisory control”).
Defendant Taylor and the Commissioners also seek dismissal of the claims asserted
against them in their individual capacities, arguing that Plaintiff has failed to adequately
plead these elements. As discussed above, Plaintiff has alleged personal involvement by
Defendant Taylor and the Commissioners in Mr. Pendleton’s constitutional deprivation.

Specifically, Plaintiff alleges that: (1) Defendant Taylor failed to use available funds to
ensure adequate staffing and inmate supervision at the OCDC; and (2) the Commissioners
composed a budget that failed to allocate sufficient funds for the safekeeping of inmates at
the OCDC. Compl. ¶ 40; see also ¶¶ 34-39, 41-50. Moreover, Plaintiff has sufficiently
alleged that Defendant Taylor and the Commissioners acted with the requisite culpability:
deliberate indifference. See supra. What remains to be determined, therefore, is whether
a sufficient causal connection exists. See Schneider, 717 F.3d at 767.
“Section 1983 imposes liability on a government official who ‘subjects, or causes

to be subjected, any citizen . . . to the deprivation of any rights.’” Id. at 778 (omission in
original) (internal quotation marks omitted). “Causation is generally a question of fact for
the jury.” Id. “[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.” Dodds v. Richardson, 614 F.3d

1185, 1211 (10th Cir. 2010); accord Schneider, 717 F.3d at 768-69. Plaintiff plausibly
alleges that the Commissioners’ failure to fund jail operations and Defendant Taylor’s
failure to ensure adequate staffing and inmate supervision set in motion a series of events
that these Defendants knew or should have known would enhance the likelihood of inmate-
on-inmate violence.

Thus, the Court concludes that Plaintiff has satisfied her pleading burden for the
imposition of individual liability against Defendant Taylor and the Commissioners.
6. Assertion of Qualified Immunity
Finally, Defendant Taylor and the Commissioners nominally argue that they are
entitled to qualified immunity as to the claims asserted against them in their individual

capacities. “Qualified immunity protects officials from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Thomas v. Kaven, 765 F.3d 1183, 1194
(10th Cir. 2014) (internal quotation marks omitted).
“In resolving a motion to dismiss based on qualified immunity, the court considers
(1) whether the facts that a plaintiff has alleged make out a violation of a constitutional
right, and (2) whether the right at issue was clearly established at the time of defendant’s

alleged misconduct.” Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (internal
quotation marks omitted). In making this assessment, the Court must construe the
complaint in the light most favorable to Plaintiff, accept all well-pleaded allegations as
true, and draw all reasonable inferences in Plaintiff’s favor. See Bella v. Chamberlain, 24
F.3d 1251, 1254 (10th Cir. 1994).

As thoroughly detailed above, Plaintiff’s facts support her claim that these
Defendants violated Mr. Pendleton’s constitutional rights in connection with the events of
July 18, 2017. And while Defendants’ invocation of qualified immunity arguably raised
the clearly-established-law question, see Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir.
2015), Defendants argue only that the law was not clearly established as to “constitutional

tort liability for preliminary funding decisions,” which is not a complete or accurate
characterization of Plaintiff’s § 1983 claims of liability, as discussed above. Plaintiff
responds by citing multiple published Tenth Circuit decisions supporting her position that
it was clearly established prior to July 18, 2017, that officials who provide and oversee jail
facilities may be liable for injuries caused by inmate-on-inmate violence under the alleged

circumstances. See Pl.’s Resp. to Taylor Indiv. Capacity Mot. at 17-19; Pl.’s Resp. to
Comm’rs Indiv. Capacity Mot. at 8-14.
Accordingly, the Court declines to dismiss Plaintiff’s individual-capacity claims on
the basis of qualified immunity.6
C. State-Law Claims

Relying on Bosh v. Cherokee County Building Authority, 305 P.3d 994 (Okla. 2013),
Plaintiff asserts claims against the Board for violation of Mr. Pendleton’s due process rights
under article 2, section 7 of the Oklahoma Constitution. See Compl. ¶¶ 64-65, 68-69, 72-
73; Pl.’s Resp. to Bd. Mot. & Comm’rs Official Capacity Mot. at 30 (“All state law claims
are asserted against the Board consistent with state law.”).7 In Bosh, the Oklahoma

Supreme Court recognized a private cause of action for excessive force in violation of
article 2, section 30 of the Oklahoma Constitution and held that such an action was not
barred by the Oklahoma Governmental Tort Claims Act (“GTCA”), which, at that time,
did not expressly immunize the State and its political subdivision from tort claims based
on alleged state-constitution deprivations. See Bosh, 305 P.3d at 997-1004.

Based upon the current state of the law, however, Plaintiff’s state-law claims are

6 This disposition “does not foreclose [these Defendants] from reasserting their entitlement
to qualified immunity on a motion for summary judgment should [Plaintiff’s] allegations
in the complaint prove to be unfounded.” Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir.
1996) (reversing a grant of qualified immunity on a motion to dismiss where it was
“premature, absent a factual record”). The Court makes no finding as to whether these
Defendants, at the appropriate stage, will be able to to show entitlement to qualified
immunity when Plaintiff “can no longer rest on the pleadings.” Thomas, 765 F.3d at 1194
(internal quotation marks omitted). See generally 2 Moore’s Federal Practice §
12.34[4][b] (3d ed. 2017) (noting that ordinarily establishment of the defense of qualified
immunity requires factual review and should not support dismissal for failure to state a
claim).
7 The individual Defendants’ request to dismiss these claims as to them is moot in light of
Plaintiff’s clarification.
subject to dismissal. In 2014, “the Legislature . . . responded to Bosh by amending the
GTCA to specify that the State’s immunity from suit extended even to torts arising from
alleged deprivations of constitutional rights.” Barrios v. Haskell Cty. Pub. Facilities Auth.,

432 P.3d 233, 238 (Okla. 2018); see Okla. Stat. tit. 51, §§ 152(14) (2014), 152.1(A). In
Barrios, the Oklahoma Supreme Court held that, in light of the 2014 legislative amendment
and “the GTCA’s specific prohibition against tort suits arising out of the ‘operation or
maintenance of any prison, jail or correctional facility,’” the holding of Bosh cannot “be
extended to allow inmates allowing violations of their Article II, Section[] 7 . . . rights to

bring suit against the State for money damages.” Barrios, 432 P.3d at 238-39.
Accordingly, Plaintiff’s state-law claim for violation of this provision of the Oklahoma
Constitution must be dismissed. See id.; Burke v. Muskogee Cty. Council of Youth Servs.,
No. CIV-18-108-RAW, 2019 WL 2163611, at *4 (E.D. Okla. May 17, 2019).8
CONCLUSION

For the foregoing reasons, the Court orders as follows:
Defendants’ Motions (Doc. Nos. 5, 6, 7, 8, 9) are each GRANTED IN PART and
DENIED IN PART. Plaintiff’s federal constitutional claims shall proceed, but Plaintiff’s
state-law claims are dismissed without prejudice.

8 The Oklahoma Supreme Court went on to note, “[E]ven if not barred by sovereign
immunity, . . . it is doubtful that such claims would exist in the Oklahoma common law.”
Barrios, 432 P.3d at 239 (“[C]ertainly nothing in the text of Article II, Sections 7 and 9
creates a tort cause of action for money damages as a remedy to vindicate violations of
those rights . . . .”).
This case shall be set for a status and scheduling conference on the Court’s next
regular docket.
IT IS SO ORDERED this 30th day of September, 2019.

CHARLES B. GOODWIN
United States District Judge

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387850. Public record. Not legal advice.