Carskadon v. Armor Correctional Health Services Inc

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

WENDY CARSKADON, )

individually, and as Administrator )

of the Estate of AMANDA )

LYNNETTE FREEMAN, Deceased, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-1013-G

)

ARMOR CORRECTIONAL HEALTH )

SERVICES, INC., et al., )

)

Defendants. )

ORDER

Now before the Court are the following motions: (1) Motion to Dismiss Amended

Complaint, filed by Defendants Board of County Commissioners of Oklahoma County and

Sheriff P.D. Taylor (Doc. No. 24);1 (2) Defendant Armor Correctional Health Services,

Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint (Doc. No. 25); and (3) Motion to

Dismiss Plaintiff’s Amended Complaint filed by Defendant Jerry Childs Jr., DO (Doc. No.

28). Plaintiff has responded in opposition to each Motion (Doc. Nos. 30, 31, 32), and

Defendants have replied (Doc. Nos. 34, 35, 36). After considering the parties’ arguments

and the governing law, the Court determines that the Motions should be granted.

1 The Amended Complaint raises claims against John Whetsel, the prior Sheriff of

Oklahoma County, in his official capacity. See Am. Compl. (Doc. No. 20) at 1. P.D.

Taylor, the current Sheriff, is hereby substituted as Defendant on these official-capacity

claims pursuant to Federal Rule of Civil Procedure 25(d).

SUMMARY OF THE PLEADINGS

A. Plaintiff’s Allegations

Amanda Lynnette Freeman died on February 11, 2017, while in pretrial custody at

the Oklahoma County Detention Center (“OCDC”). Am. Compl. ¶¶ 2, 29. Ms. Freeman

was booked into the OCDC on or about February 7, 2017, after she was arrested and

charged with possession of a controlled dangerous substance and drug paraphernalia. Id.

¶¶ 11, 12. “At the time of [her] arrest and/or her booking into the [OCDC],” Ms. Freeman

“informed officials that she had recently taken a large amount of methamphetamine,” that

“she was presently undergoing methadone treatment, and that she had medical issues with

drug withdrawal, including seizures.” Id. ¶ 12.2

At approximately 5:20 a.m. on February 10, 2017, Linda Jackson—a registered

nurse employed by Defendant Armor Correctional Health Services, Inc.—was summoned

to Ms. Freeman’s cell, where she found Ms. Freeman “kicking and flailing her arms and

shouting ‘NAAAAAA’ with every breath and foaming at the mouth.” Id. ¶ 13. Prior to

administering medical care, Nurse Jackson “attempted to perform an exorcism” on Ms.

Freeman. Id. ¶ 15. With assistance from “five or so” correctional officers, Nurse Jackson

put Ms. Freeman on a gurney and transported her to the facility’s medical clinic, where she

arrived at approximately 5:45 a.m. Id. ¶¶ 14, 16.

2 In her Response to Dr. Childs’ Motion, Plaintiff explains that she is presently unaware of

the individual(s) to whom Ms. Freeman gave this information. See Pl.’s Resp. to Def.

Childs Mot. (Doc. No. 32) at 8-9.

Upon arriving at the medical clinic, Nurse Jackson called a psychiatric nurse

practitioner, who referred her to Defendant Jerry Childs Jr., DO (“Dr. Childs”). Id. ¶ 16.

Nurse Jackson called Dr. Childs, who instructed her to administer 10 mg of Haldol and 2

mg of Ativan to Ms. Freeman. Id. At approximately 6:02 a.m., Nurse Jackson

administered the medications as instructed by Dr. Childs. Id. ¶ 17.

Nurse Jackson observed “no noticeable change” in Ms. Freeman. Another nurse

contacted Dr. Childs at approximately 6:45 a.m. Id. ¶ 19. Dr. Childs ordered that Ms.

Freeman be given an additional 2 mg of Ativan. Id.

At approximately 7:42 a.m., a third nurse reported that Ms. Freeman appeared “to

be under the influence of an intoxicating substance.” Id. ¶ 20. The report indicated that

Ms. Freeman had an elevated heart rate (137 beats per minute), that she was “handcuffed

and chained to the gurney” with “a hood placed over her head,” and that she “smelled of

urine.” Id.

Dr. Childs examined Ms. Freeman at approximately 10:49 a.m. Id. ¶ 21. He noted

that she was “calm,” exhibited no signs of distress, and that—while she was “not

responding to voice”—she was able to move all extremities. Id. Concluding that her

condition was a “probable drug intox,” Dr. Childs “placed [Ms. Freeman] on 23-hour

observation, ordering vital signs be taken every 4 hours.” Id.

Ms. Freeman was returned to her cell and “advised to return to medical if [her]

condition worsen[ed]” or in the event of an emergency. Id. ¶ 22 (first alteration in original).

Her vital signs, as recorded at 10:55 a.m. and 2:47 p.m., reflected an elevated heart rate.

Id. ¶¶ 23-24. Ms. Freeman’s last recorded vital signs were taken at 11:26 p.m. Id. ¶ 25.3

At approximately 4:49 a.m. on February 11, 2017, Ms. Freeman was “found

unresponsive lying on a bunk” in her cell. Id. ¶ 26. A nurse “ran for assistance and then

returned to [Ms. Freeman’s] cell” to administer CPR. Id. “An automated external

defibrillator (“AED”) was applied as well as an artificial manual breathing unit bag

(“AMBU bag”) with oxygen.” Id. CPR was continued until emergency medical

responders arrived at approximately 5:00 a.m. Id. On arrival, the responders noted that

Ms. Freeman was “pulseless, apneic and unresponsive,” as well as “rigored, specifically in

her jaw and neck.” Id. ¶ 27. She was pronounced dead “at 5:00:14 a.m.” Id. ¶ 29.

B. Plaintiff’s Claims

Plaintiff Wendy Carskadon, Ms. Freeman’s mother, brought suit in this Court

pursuant to 42 U.S.C. § 1983, asserting claims both on behalf of herself and—in her

capacity as administrator of Ms. Freeman’s estate (the “Estate”)—on behalf of the Estate.

Plaintiff names as defendants: Dr. Childs; the Board of County Commissioners for

Oklahoma County (the “Board”); P.D. Taylor, in his official capacity as Sheriff of

Oklahoma County (“Sheriff”);4 and Armor Correctional Health Services, Inc. (“Armor”),

a Florida-based company that provided medical care to Ms. Freeman pursuant to an Inmate

3 It is unclear from the Amended Complaint whether Plaintiff’s vital signs were taken

between 2:47 p.m. and 11:26 p.m. and, if so, whether Plaintiff’s heart rate was elevated

during that period. It is not stated whether Plaintiff’s heart rate was elevated when recorded

at 11:26 p.m.

4 See supra note 1.

Care Services Agreement executed and subsequently renewed by the Board. Id. ¶¶ 3-6,

37, 48.

Plaintiff alleges on her own behalf a claim against each Defendant for deprivation

of her “liberty interest in the parent-child relationship in violation of her substantive due

process rights as defined by the First and Fourteenth Amendments to the United States

Constitution.” Id. ¶¶ 64, 79, 93, 108. On behalf of the Estate, Plaintiff asserts that

Defendants violated Ms. Freeman’s rights under the Eighth and Fourteenth Amendments

to the U.S. Constitution. Id. ¶¶ 51-109. Plaintiff contends that each of the Defendants was

“deliberately indifferent to the serious medical needs of [Ms. Freeman] by failing to

summon or provide [Ms. Freeman] with appropriate medical care, and/or take other

measures to prevent her death after noticing her need for medical attention.” Id. ¶¶ 64, 79,

93, 108. Plaintiff additionally alleges that Ms. Freeman was subjected to unconstitutional

conditions of confinement at OCDC. See id. ¶¶ 30-36, 70, 84.

ANALYSIS

Defendants move to dismiss Plaintiff’s individual § 1983 claims for deprivation of

her parent-child relationship on the basis that she lacks standing. The Board also moves to

dismiss all claims brought on behalf of the Estate for lack of subject-matter jurisdiction.

Finally, Defendants move to dismiss Plaintiff’s constitutional claims for failure to state a

claim upon which relief may be granted.

A. Standing

Certain of the Defendants contend that Plaintiff lacks standing to assert, on her own

behalf, a claim for deprivation of her liberty interest in the parent-child relationship in

violation of her substantive due process rights. See, e.g., Def. Armor Mot. (Doc. No. 25)

at 10-11 (citing Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990) (“[A] section

1983 claim must be based upon the violation of plaintiff’s personal rights, and not the rights

of someone else.”)). In her responses to the Motions, Plaintiff states that she withdraws

that claim. See Pl.’s Resp. to Defs. Bd./Sheriff Mot. (Doc. No. 30) at 2-3; Pl.’s Resp. to

Def. Armor Mot. (Doc. No. 31) at 4 (stating that Plaintiff brings this suit only as

“administrator of Freeman’s estate and not as next of kin”); Pl.’s Resp. to Def. Childs Mot.

at 4 (stating that Plaintiff brings this action as “duly appointed administrator of the estate”).

There being no objection to the relief sought, the Motions are granted as to this issue. The

docket shall be updated to reflect that Plaintiff is not proceeding “individually,” and

Plaintiff’s claims for deprivation of her liberty interest in the parent-child relationship (see

Am. Compl. ¶¶ 64, 79, 93, 108) shall be dismissed without prejudice.

B. Subject-Matter Jurisdiction

1. Applicable Standard

A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction takes one

of two forms: a facial attack or a factual attack. Pueblo of Jemez v. United States, 790 F.3d

1143, 1148 n.4 (10th Cir. 2015). Here, the Board attempts to raise a facial attack by

questioning the sufficiency of Plaintiff’s allegations to establish the Court’s subject-matter

jurisdiction over Plaintiff’s constitutional claims. See id.; Defs. Bd./Sheriff Mot. (Doc. No.

24) at 14-20. In reviewing a facial attack, a district court must accept the allegations in the

complaint as true. See Pueblo of Jemez, 790 F.3d at 1148 n.4.

2. Discussion

First, the Board asserts that, because it “has no express statutory authority to act in

operating the [OCDC],” the injury alleged is not “traceable to the [Board’s] acts or

omissions.” Defs. Bd./Sheriff Mot. at 15-16 (citing Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992) (noting that one element required to establish constitutional

standing is “a causal connection between the injury and the conduct complained of”)). This

argument “conflates the justiciability of a plaintiff’s lawsuit with the plaintiff’s ultimate

ability to prove a defendant’s liability in that lawsuit.” 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); 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, this

argument, in reality, is premised on the notion that Plaintiff has failed to state a claim upon

which relief can be granted because the BOCC has no authority to act in areas of detaining

or releasing inmates.”).

“Under Oklahoma law, a county’s board of county commissioners is not a separate

legal entity from the county”; rather, “it exercises the powers of the county.” Snow v. Bd.

of Cty. Comm’rs of Cty. of McClain, No. CIV-14-911-HE, 2014 WL 7335319, at *2 (W.D.

Okla. Dec. 19, 2014). More to the point, “[a] suit brought against a county’s board of

county commissioners is the way Oklahoma law contemplates suing the county.” Id.

(citing Okla. Stat. tit. 19, § 4). In this case, Plaintiff has alleged that Oklahoma County,

through the Board, contracted with Armor for the provision of allegedly substandard

medical care to inmates at the OCDC. See Am. Compl. ¶¶ 3, 37, 48; see also id. Exs. 1, 2

(Doc. Nos. 20-1, 20-2). This allegation is sufficient to establish an “injury” that is “fairly

traceable to the challenged action of” the Board and to establish Plaintiff’s standing to bring

her § 1983 claims against the Board. Defenders of Wildlife, 504 U.S. at 560 (alteration,

omission, and internal quotation marks omitted); see Vernon v. Slabosky, No. CIV-11-815-

HE, 2016 WL 4775739, at *14 (W.D. Okla. Sept. 14, 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.”); see also Defenders of Wildlife, 504 U.S. at 561 (explaining

that “[a]t the pleading stage, general factual allegations of injury resulting from the

defendant’s conduct may suffice” to establish standing). Accordingly, the Board’s request

to dismiss Plaintiff’s claims under Rule 12(b)(1) shall be denied.5

Second, the Board argues that the claims against it should be dismissed because

asserting claims against both the Board and the Sheriff in his official capacity is redundant

and unnecessary. See Defs. Bd./Sheriff Mot. at 21-22. The Board states that bringing suit

“against the [Board]” and bringing suit against “a county official in his or her official

capacity” “are simply different ways to bring suit against a county.” Id. at 21.

The Court agrees that the referenced claims are duplicative. The Court, however,

finds that dismissal of the claims against the Sheriff is appropriate. See Kentucky v.

Graham, 473 U.S. 159, 166 (1985) (“[A]n official capacity suit is, in all respects other than

name, to be treated as a suit against the entity.”); Martinez v. Beggs, 563 F.3d 1082, 1091

5 Although the Court has considered this argument as presented—under Rule 12(b)(1)—it

would likewise be rejected if considered as a request for dismissal for failure to state a

claim under Rule 12(b)(6). See Powell v. Bd. of Cty. Comm’rs of Okla. Cty., No. CIV-18-

294-D, 2019 WL 2238022, at *3-4 (W.D. Okla. May 23, 2019).

(10th Cir. 2009) (stating that bringing “a claim against [a sheriff] in his official capacity .

. . is the same as bringing a suit against the county”); Espinosa Hernandez v. Bd. of Cty.

Comm’rs of Okla. Cty., CIV-18-606-R, 2019 WL 3069430, at *6 (W.D. Okla. July 12,

2019) (finding that “the official capacity claim against [the sheriff] is a claim against

Oklahoma County, and therefore is redundant” to claims brought against the Board);

Powell, 2019 WL 2238022, at *4 (dismissing official-capacity claims against the sheriff

regarding conditions at OCDC, rather than claims against the Board, as redundant). All

claims against Sheriff Taylor in his official capacity shall be dismissed without prejudice.

C. Failure to State a Claim

1. Applicable Standard

Federal Rule of Civil Procedure 12(b)(6) provides 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).

2. Deliberate Indifference to Serious Medical Need

Plaintiff asserts that all Defendants were deliberately indifferent to Ms. Freeman’s

serious medical needs in violation of the Eighth and Fourteenth Amendments to the U.S.

Constitution. See Am. Compl. ¶¶ 51-109. “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).

Ms. Freeman was a pretrial detainee. “A prison official’s ‘deliberate indifference’

to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer

v. Brennan, 511 U.S. 825, 828 (1994). However, “[t]he constitutional protection against

deliberate indifference to a pretrial detainee’s serious medical condition springs from the

Fourteenth Amendment’s Due Process Clause.” Burke v. Regalado, 935 F.3d 960, 991

(10th Cir. 2019); accord Van Curen v. McClain Cty. Bd. of Cty. Comm’rs, 4 F. App’x 554,

556 (10th Cir. 2001). “In evaluating such Fourteenth Amendment claims, ‘we apply an

analysis identical to that applied in Eighth Amendment cases.’” Burke, 935 F.3d at 991

(quoting Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999)).

The “deliberate indifference standard has objective and subjective components.” Id.

at 992 (alterations and internal quotation marks omitted). To establish the objective prong,

Plaintiff must show “that the deprivation at issue was ‘sufficiently serious.’” Mata v. Saiz,

427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 834 (1994)). “[A] medical

need is sufficiently serious if it is one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Id. (internal quotation marks omitted).

To establish the subjective component of the deliberate-indifference standard,

Plaintiff must allege sufficient facts to demonstrate that the defendant in question knew of

and disregarded “an excessive risk to inmate health or safety.” Id. The defendant “must

both be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and she must also draw the inference.” Id. (alteration and internal

quotation marks omitted). The Tenth Circuit has explained that “the subjective component

is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises

his considered medical judgment.” Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006).

[W]here a doctor orders treatment consistent with the symptoms presented

and then continues to monitor the patient’s condition, an inference of

deliberate indifference is unwarranted . . . .

. . . Indeed, our subjective inquiry is limited to consideration of the

doctor’s knowledge at the time he prescribed treatment for the symptoms

presented, not to the ultimate treatment necessary.

Id. at 1232-33.

Defendants argue that Plaintiff fails to plead facts sufficient to plausibly support a

claim of deliberate indifference. Because the Court concludes that Plaintiff has not

satisfied her pleading burden with respect to the subjective component, the Court need not

decide whether Plaintiff’s allegations satisfy the objective component of her claim—i.e.,

that Ms. Freeman’s medical condition was “sufficiently serious.”

Plaintiff’s allegations, taken as true, establish that Ms. Freeman was rushed to the

OCDC’s medical clinic within minutes of being found in a state of distress. See Am.

Compl. ¶¶ 13-16. Dr. Childs was consulted and medications were administered. Id. ¶¶ 16-

19. Ms. Freeman was subsequently examined by Dr. Childs, who diagnosed her with

“probable drug intox,” assessed that her condition had stabilized, and ordered that she be

placed under medical observation. Id. ¶ 21. When Ms. Freeman was later “found

unresponsive” in her cell, emergency care was administered in the form of CPR, as well as

application of an AED and AMBU bag. Id. ¶ 26. Defendants argue, and the Court agrees,

that these events demonstrate that Ms. Freeman “received a consistent course of treatment,”

including “examinations, diagnoses, and medication,” and, therefore, preclude a reasonable

inference that Defendants acted with deliberate indifference to Ms. Freeman’s medical

needs. Debrow v. Kaiser, 42 F. App’x 269, 269 (10th Cir. 2002); see also Self, 439 F.3d

at 1232-33.

Plaintiff argues that Dr. Childs and Armor employees failed to properly treat Ms.

Freeman’s medical condition. See Pl.’s Resp. to Def. Childs Mot. at 7; Pl.’s Resp. to Def.

Armor Mot. at 8. Specifically, she contends: (1) that Ms. Freeman was treated in-house

with “emergency . . . doses of antipsychotic and sedative medications” instead of being

“referr[ed] to a higher level of care”; (2) that Dr. Childs “did not physically observe [Ms.

Freeman] until approximately five hours after the event, at which point he diagnosed a

‘probable drug intox,’ and ordered [Ms. Freeman] to be placed on 23-hour observation and

her vital signs to be taken every 4 hours”; (3) that Nurse Jackson “attempted an exorcism”;

and (4) that Armor employees “deliberately disregarded” Ms. Freeman’s apparent seizure

and elevated heart rate. Pl.’s Resp. to Def. Childs Mot. at 7-9; Pl.’s Resp. to Def. Armor

Mot. at 8-10. Each argument is considered in turn.

a. In-House Treatment

Plaintiff’s contention that Ms. Freeman should have been referred by Dr. Childs to

a higher level of care amounts to a mere “difference of opinion with medical staff,” which

is insufficient to establish deliberate indifference as a matter of law. Toler v. Troutt, 631

F. App’x 545, 547 (10th Cir. 2015). Whether Ms. Freeman’s condition warranted

treatment by a specialist or other provider of “higher” care was a question of medical

judgment entrusted to Dr. Childs, and Plaintiff has not, as she must, shown that Dr. Childs

exhibited an “extraordinary degree of neglect” in deciding to treat Ms. Freeman himself.

Self, 439 F.3d at 1232; Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992) (explaining

that prescribing medication and referring a patient to a specialist are generally matters of

medical judgment that do not give rise to a § 1983 claim). Indeed, Plaintiff does not

contend that Dr. Childs was unqualified to treat Ms. Freeman, that he misdiagnosed her

condition, or that the medications or treatment he prescribed for her were inappropriate

under the circumstances.

b. Delay in Physical Examination by Dr. Childs

Similarly, Plaintiff’s opinion that Dr. Childs should have examined Ms. Freeman

sooner is insufficient, without more, to plausibly state a claim of deliberate indifference.

A delay in medical care can form the basis of an Eighth Amendment violation

“where the plaintiff can show that the delay resulted in substantial harm.” Sealock v.

Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). But in this case, Plaintiff’s allegations

do not reflect that Ms. Freeman experienced a delay in treatment. By Plaintiff’s own

account, Ms. Freeman was rushed to the OCDC’s medical clinic, where, in the hours

immediately following her medical episode, she was treated and monitored by a staff of

nurses under the direct supervision of Dr. Childs. See Am. Compl. ¶¶ 13-20. Plaintiff,

rather, alleges only that Ms. Freeman experienced delay with respect to a particular form

of treatment: physical examination by a doctor.

A delay in being seen by a physician, as opposed to other medical staff, does not in

and of itself constitute an Eighth Amendment violation. “[T]here is no per se requirement

that a jail provide its inmates around-the-clock access to a medical doctor.” Boyett v. Cty.

of Wash., 282 F. App’x 667, 673 (10th Cir. 2008).

While jailers are ultimately responsible for their inmates’ medical needs, they

can provide that care in a variety of ways, including access to trained

personnel such as guards in the first instance, nurses, and physicians’

assistants. The Eighth Amendment requires nothing more as a general

matter. While access to a medical doctor may be necessary in certain

situations, no constitutional violation occurs unless medical care is

intentionally or recklessly denied.

Id. (citations omitted). Even in serious medical situations, an inmate’s initial evaluation

and treatment by prison nursing staff may be consistent with the Eighth Amendment. See,

e.g., Vargas v. Corr. Healthcare Mgmt. of Okla., Inc., No. CIV-06-498-F, 2007 WL

1432051, at *1, *4 (W.D. Okla. May 14, 2007) (holding that defendant was entitled to

summary judgment on inmate’s Eighth Amendment claim based on delay in medical

treatment of his bullet wound where inmate was initially examined and administered

medications by an on-staff nurse and provided “further evaluation and medical treatment”

by a doctor the following day); Watson v. Corr. Corp. of Am., No. CV-14-454-RAW-SPS,

2018 WL 1474895, at *6-8 (E.D. Okla. Mar. 26, 2018) (holding that inmate failed to

establish an Eighth Amendment violation based on delay in medical care where the record

showed that he was immediately examined and treated by prison nursing staff and

subsequently “placed in a medical cell for further examination by a doctor later in the day”).

Plaintiff has not alleged facts that would support an inference that the treatment provided

Ms. Freeman—including immediate examination by nursing staff, telephone consultation

by nursing staff with a physician, provision of medication as directed by the physician,

subsequent examination by the nursing staff and the physician, and continued

monitoring—was intentionally or recklessly denied, or otherwise deficient to such a degree

as would allow a deliberate-indifference claim.

c. Attempted Exorcism

Plaintiff does not contend that the exorcism allegedly attempted by Nurse Jackson

directly harmed Ms. Freeman. Thus, the only apparent relevance of this event in the

context of Plaintiff’s Eighth Amendment claim lies in the possibility that it delayed the

administration of medical care. Plaintiff pleads no facts, however, that would allow a

reasonable inference that any delay occasioned by the alleged exorcism caused Ms.

Freeman’s death or any other “substantial harm.” Sealock, 218 F.3d at 1210. Indeed,

Plaintiff alleges that Ms. Freeman arrived at the medical clinic approximately 25 minutes

after Nurse Jackson was summoned to her cell, where she was sedated and remained in a

stable condition for several hours. See Am. Compl. ¶¶ 13-16.

d. Disregard for Ms. Freeman’s Condition Due to Armor’s Conflict of

Interest

Plaintiff’s final complaint—that Armor employees “deliberately disregarded” Ms.

Freeman’s apparent seizure and elevated heart rate due to a conflict of interest—is

impermissibly conclusory. Plaintiff alleges that the Inmate Care Services Agreement

created “a contractual incentive” for Armor, as well as Dr. Childs, “to keep [Ms.

Freeman’s] treatment in-house at [the OCDC] rather than transporting her to a higher level

of care for evaluation and treatment” and that all Defendants knew about this incentive.

Am. Compl. ¶¶ 49-50; see also id. ¶¶ 40-47.

This allegation is belied by Plaintiff’s own factual allegations that the on-staff

medical team responded to Ms. Freeman’s condition by rushing her to the OCDC’s medical

clinic, consulting with Dr. Childs, administering medications as directed, and placing Ms.

Freeman under medical observation. See id. ¶¶ 13-21. By Plaintiff’s own account, Armor

employees “took relatively prompt action” in response to Ms. Freeman’s condition, which

is not indicative of deliberate indifference and does not show a culpable state of mind.

Rose v. Beckham, 82 F. App’x 662, 665 (10th Cir. 2003). Accordingly, Plaintiff has failed

to state a claim upon which relief can be granted with regard to denial of adequate medical

care.

3. General Conditions of Confinement

In addition to the claims based on inadequate medical care, Plaintiff appears to

allege Defendants Board and Sheriff subjected Ms. Freeman to unconstitutional conditions

of confinement. See Am. Compl. ¶¶ 30-36, 70, 84. In this regard, Plaintiff alleges that

Defendants were aware of a 2008 report issued by the Department of Justice “outlining . .

. constitutional deficiencies” at the OCDC (the “DOJ Report”), including, as relevant here,

“failure to meet detainees’ serious medical needs,” “inadequate[] screening [of] detainees

for serious medical problems,” and “failure to provide appropriate access to medical care

during emergencies.” Id. ¶¶ 30-31, 36. Plaintiff further alleges that Defendants were aware

of a 2009 Memorandum of Understanding (“MOU”) between the United States and

Oklahoma County “set[ting] forth several actions to be taken by Oklahoma County . . . to

meet its constitutional obligations. Id. ¶¶ 33, 36.

Defendant Board moves to dismiss this claim on the basis that: (1) reliance on the

DOJ Report is “too remote, too speculative, and too conclusory” with respect to injuries

alleged to have occurred in 2017; and, (2) Plaintiff “fails to allege any specific facts that

either connect the allegedly unconstitutional conditions with [Ms. Freeman’s] own

experiences or indicate how the conditions caused” the alleged injuries. Defs. Bd./Sheriff

Mot. at 27-28.

“[W]hen the State takes a person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding duty to assume some responsibility

for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,

489 U.S. 189, 199-200 (1989). “Although the Due Process Clause governs a pretrial

detainee’s claim of unconstitutional conditions of confinement, the Eighth Amendment

standard provides the benchmark for such claims.” Craig v. Eberly, 164 F.3d 490, 495

(10th Cir. 1998) (citation omitted); see also Farmer, 511 U.S. at 832 (“[I]t is now settled

that the treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment.” (internal citation omitted)).

Pursuant to the Eighth Amendment, “[jail] officials must ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to

guarantee the safety of the inmates.’” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-

27 (1984)). In order to hold officials liable for violating Ms. Freeman’s right to humane

conditions of confinement, two requirements must be met:

First, the deprivation alleged must be objectively “sufficiently serious,”

Wilson v. Seiter, 501 U.S. 294, 298 (1991), depriving the inmate of “‘the

minimal civilized measure of life’s necessities,’” id. (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)). Second, the official must have a

“sufficiently culpable state of mind,” which in this context means the official

must exhibit “deliberate indifference” to a substantial risk of serious harm to

an inmate. Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 297. . . . . [A]

prison official is liable only if the “official knows of and disregards an

excessive risk to inmate health and safety.” Farmer, 511 U.S. at 837. It is

not enough to establish that the official should have known of the risk of

harm.

Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (citations omitted).

Here, even assuming the truth of Plaintiff’s allegations, she has not stated a plausible

claim that any jail official “kn[ew] of and disregard[ed] an excessive risk” to Ms.

Freeman’s “health or safety.” Farmer, 511 U.S. at 837. Based on this finding, the Court

need not address whether Plaintiff’s allegations satisfy the objective component.

Plaintiff alleges no unconstitutional condition of confinement affecting Ms.

Freeman other than the medical events of February 2017. The pleading states no facts

demonstrating Ms. Freeman was subjected to any other risk to her health or safety,

including any of the deficiencies outlined in the DOJ Report or MOU. Therefore, any

claims based solely on the issues described in the DOJ Report or MOU are speculative,

conclusory, and insufficient to state a claim upon which relief can be granted. With regard

to Ms. Freeman’s medical needs at OCDC, as discussed above Plaintiff pleads insufficient

facts to demonstrate deliberate indifference. For these reasons, Plaintiff’s claims based on

unconstitutional conditions of confinement must be dismissed under Rule 12(b)(6).

D. Leave to Amend

Contained within Plaintiff’s response briefs is a request for leave to amend her

pleading should the Court find the claims deficient. See Pl.’s Resp. to Defs. Bd./Sheriff

Mot. at 13; Pl.’s Resp. to Def. Armor Mot. at 14; Pl.’s Resp. to Def. Childs Mot. at 10.

None of the Defendants objected to this request in their reply briefs. And district

courts “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.

15(a)(2). “The purpose of the Rule is to provide litigants the maximum opportunity for

each claim to be decided on its merits rather than on procedural niceties.” Minter v. Prime

Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotation marks omitted).

“Refusing leave to amend is generally only justified upon a showing of undue delay, undue

prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by

amendments previously allowed, or futility of amendment.” Bylin v. Billings, 568 F.3d

1224, 1229 (10th Cir. 2009) (internal quotation marks omitted).

This Court’s local rules, however, direct that a party seeking leaving to amend under

Rule 15(a)(2) must file a motion for leave to amend, stating whether any party objects and

“attach[ing] the proposed pleading as an exhibit to the motion.” LCvR 15.1. Plaintiff did

not comply with this Rule and has not explained what changes she proposes to make. She

therefore has not shown that amendment would cure the deficiencies cited by Defendants.

The Court denies the request for leave to amend but does so without prejudice to Plaintiff

submitting a motion for leave to amend that complies with Local Civil Rule 15.1.

CONCLUSION

For the foregoing reasons, the Motions to Dismiss filed by Defendants Board of

County Commissioners of Oklahoma County, Sheriff P.D. Taylor, Armor Correctional

Health Services, Inc., and Jerry Childs Jr., DO (Doc. Nos. 24, 25, 28) are GRANTED.

Plaintiff's Amended Complaint (Doc. No. 20) is DISMISSED WITHOUT PREJUDICE.

Plaintiff may submit a motion for leave to file a second amended complaint within 14 days

of the date of this Order. Absent the filing of such a motion, judgment shall be entered for

Defendants.

IT IS SO ORDERED this 29th day of May, 2020.

United States District Judge

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