Copeland v. Lawton City of

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

LEBRON COPELAND, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-00558-PRW

)

THE CITY OF LAWTON, et al., )

)

Defendants. )

ORDER

Before the Court is Defendants City of Lawton, James Smith, William Torres, Abe

Woelfel, Kolton Jones, and Nicolas Chilcote’s Motion to Dismiss Plaintiff’s Second

Amended Complaint (Dkt. 119) (the “Motion” or the “Motion to Dismiss”). For the reasons

set forth below, the Court GRANTS THE MOTION IN PART and DENIES IT IN

PART.

Background

According to the Amended Complaint (Dkt. 118), the facts are as follows. Lebron

Copeland was involved in a traffic collision in the early morning hours of March 15, 2017,

and was promptly arrested for driving under the influence. At the time of his arrest,

Copeland was exhibiting hemispheric weakness and was unable to walk or stand.

Officers immediately transported Copeland to Comanche County Hospital. There,

a physician performed a computed tomography scan and an examination. The scan revealed

no abnormalities and Copeland reported no back or neck pain. The treating physician

determined Copeland had a high blood alcohol concentration but was otherwise stable and

released him to Officer Nicolas Chilcote of the Lawton Police Department.

Copeland was wheelchair-bound upon his release from the hospital, still unable to

walk or stand. As Chilcote brought Copeland to his police cruiser, Copeland informed

Chilcote of his continued inability to use his legs, prompting Chilcote to bring Copeland

back into the emergency room for further examination. An emergency room physician

quickly reiterated, however, that the earlier scan revealed nothing that would cause

paralysis and chalked the ailment up to intoxication.

Copeland was then taken to the Lawton City Jail. Upon arrival, he was ordered to

exit the patrol vehicle, but he was still unable to walk or stand, so officers and jailers put

him in a wheelchair. At this point, Copeland was lifted up, again instructed to walk, and

then dropped, falling into a heap on the ground. Unsuccessful in their effort to coax

ambulation, the officers and jailers returned him to the wheelchair and brought him inside.

A jailer then wheeled Copeland to the entrance of his cell. Once there, the jailer

informed Copeland that the wheelchair could not enter the cell, implying that Copeland

would need to enter unassisted. Copeland responded that he could not feel parts of his body

and was still unable to walk. The jailer proclaimed that Copeland was simply faking injury

so he could return to the hospital and, out of frustration, proceeded to toss Copeland

halfway on to the bunk. At this point, Copeland lost consciousness.

He slipped back into consciousness sometime later. Still hanging half off the bunk,

Copeland attempted to reposition himself, but, with no feeling in his lower extremities, he

fell, hitting his head on the bars of the cell. Copeland again fell unconscious.

Later that afternoon, an officer brought Copeland back to Comanche Memorial

Hospital to address his continued hemispheric weakness and newly emergent back and

neck pain. A second computed tomography scan was conducted. As before, the scan

revealed no abnormalities. Copeland was given discharge instructions about cervical

sprains and returned to police custody.

As he left Comanche Memorial Hospital, Copeland complained to the transporting

officer that he had no control over the right side of his body. Unphased, and believing

Copeland to be simply malingering based on the fresh medical clearance, the officer

attempted to stand Copeland in front of his wheelchair, causing him to immediately

crumple to the ground. The officer then placed Copeland back in the wheelchair, brought

him to the patrol car, and threw him into the rear of the vehicle.

Upon his return to the Lawton City Jail, Copeland was again thrown into his cell,

this time on to the floor. There, he languished for hours, denied assistance in going to the

bathroom and his insulin and other medications. After lying on the floor for some hours

covered in his own urine and feces, employees on the subsequent shift lifted him on to the

bunk.

At around 12:30 PM on March 16, 2017, Copeland was transferred to Comanche

County Jail. He was again handled roughly, again deprived of medical care, and again

denied assistance in going to the bathroom.

Several hours after that, Copeland was brought before the Honorable Kenny Harris

in the Comanche County Courthouse. He was covered in urine and feces, had his pants

slung halfway down to his knees, and was clad with only a single shoe. Judge Harris

released the disheveled Copeland on bond.

Copeland then went to Southwestern Medical Center. There, physicians performed

another computed tomography scan. This time, the scan revealed several fractures: of the

C3, C4, and C5 vertebrae. Copeland’s lower-body paralysis persists to this day.

Based on these allegations, on June 7, 2018, Copeland sued the City of Lawton; the

Comanche County Facilities Authority; James T. Smith in his individual and official

capacities; Kenny Stradley in his individual and official capacities; ten unnamed

individuals in their individual capacities; Officer William Torres in his individual capacity;

Officer Abe Woefel in his individual capacity; Officer Kolton Jones in his individual

capacity; Officer Nicolas Chilcote in his individual capacity; and William Hobbs in his

individual and official capacities. He asserts nine claims in total: six under 42 U.S.C. §

1983, two sounding in negligence, and one under the Oklahoma Constitution.

Now, the City of Lawton, Smith, Torres, Woelfel, Jones, and Chilcote (together,

“Defendants”) ask the Court to reaffirm the earlier dismissal of several of these claims and

to dismiss anew the claims against the City of Lawton pursuant to Federal Rule of Civil

Procedure 12(b)(6).1

The Court will address the Motion to Dismiss in steps. First, it will state the

applicable standard of review. Then, it will turn to the discrete arguments raised by the

1 See Defs.’ Mot. to Dismiss and Br. in Supp. (Dkt. 119).

parties, elaborate on the specific claims at issue, discuss the applicable law, and resolve the

matter.

Standard of Review

In reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, all well-pleaded

allegations in the complaint must be accepted as true and viewed “in the light most

favorable to the plaintiff.”2 While a complaint need not recite “detailed factual allegations,”

“a plaintiff’s obligation to provide the grounds of [her] entitle[ment] to relief requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.”3 The pleaded facts must establish that the claim is plausible.4

Discussion

I. The Previously Dismissed Claims

Defendants begin by noting that the Amended Complaint (Dkt. 118) does not reflect

the earlier dismissal of certain claims and parties, and then ask the Court to reaffirm these

dismissals. In response, Copeland makes clear that his intention was not to relitigate these

claims or rejoin these parties. Given that these claims and parties were, in fact, dismissed,

and that Copeland acknowledges these earlier dispositions and disavows any pretense of

relitigating these issues, the Court finds that these matters are not in dispute and therefore

warrant no further discussion.

2 Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting David v.

City & County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996)).

3 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and

citations omitted) (alteration in original).

4 Id.

II. A Procedural Question: Whether the Failure to Raise an Available Argument in

an Earlier Motion to Dismiss Precludes the Later Raising of that Argument

Copeland makes a threshold, procedural argument in an effort to foreclose

consideration of the balance of the Motion to Dismiss that the Court must necessarily

address before turning to the substantive arguments. Namely, Copeland argues that the City

of Lawton could have raised its current arguments in an earlier motion to dismiss for failure

to state a claim but failed to do so. Therefore, he continues, it is precluded from raising

those arguments now.

Copeland’s argument is without merit and contrary to the law in this circuit. An

argument that could have been raised in a motion to dismiss for failure to state a claim, but

was not, remains available.5

III. The City of Lawton’s Potential Liability as a Municipality

a. The Parties’ Arguments on Motion to Dismiss

Now, the Court turns to the City of Lawton’s chief, substantive contention: that

Copeland has failed to allege enough facts to state a claim under 42 U.S.C. § 1983 against

it as a municipality.

The Amended Complaint (Dkt. 118) is robustly generic and, as a result, thoroughly

vague in its legal statements and theories. But, at a high level, Copeland appears to assert

42 U.S.C. § 1983 claims against the City of Lawton based on the use of excessive force

5 See Albers v. Bd. of Cty. Comm’rs of Jefferson Cty., Colo., 771 F.3d 697, 701–04 (10th

Cir. 2014) (finding a district court’s consideration of an argument that could have been

raised in an earlier motion to dismiss for failure to state a claim but was not was harmless

error because that argument could be presented in a motion for judgment on the pleadings

or at trial).

and the inadequate administration of medical care. He seems to allege that the use of

excessive force and deprivation of medical care are the predictable consequence of certain

affirmative municipal customs, policies, and practices or, alternatively, are the product of

a culpable failure to train or supervise. Copeland’s scattershot pleading distills to four

distinct legal theories: that an affirmative municipal custom, policy, or practice of using

excessive force caused his injuries; that a culpable failure to train or supervise with respect

to the use of excessive force caused his injuries; that an affirmative municipal custom,

policy, or practice of withholding adequate medical care caused his injuries; and that a

culpable failure to train or supervise with respect to the administration of adequate medical

care caused his injuries.

In the Motion to Dismiss, the City of Lawton argues that these claims against it, as

a municipality, must be dismissed for failure to state a claim upon which relief can be

granted. As to the theories premised on an affirmative municipal custom, policy, or

practice, the City of Lawton argues that Copeland has failed to adequately identify such a

municipal custom, policy, or practice and, even if he has, he has failed to adequately allege

that it caused his injuries. As to the theories premised on a culpable failure to train or

supervise, the City of Lawton argues that Copeland has failed to allege that it disregarded

a known or obvious consequence of its inaction and, even if he has adequately done so, he

has failed to adequately allege that such inaction caused his injuries.

b. The Law on Municipal Liability Under 42 U.S.C. § 1983

The applicable law is as follows. Title 42 U.S.C. § 1983, which provides the cause

of action for the claims at issue, provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State . . . subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress . . . .

“A municipality or other local government may be liable under this section if the

governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person

‘to be subjected’ to such deprivation.”6 “But, under § 1983, local governments are

responsible only for ‘their own illegal acts.’”7 “They are not vicariously liable under § 1983

for their employees’ actions.”8

To state a claim against a municipality under § 1983, a plaintiff must allege facts

showing that a municipal employee committed a constitutional violation and that a

municipal policy or custom was the moving force behind that constitutional deprivation.9

A plaintiff seeking to establish municipal liability on the theory that a facially lawful

municipal action has led an employee to violate a plaintiff’s rights must also demonstrate

that the municipal action was taken with “deliberate indifference” as to its known or

obvious consequences.10

6 Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell v. New York City Dept. of

Soc. Servs., 436 U.S. 658, 692 (1978)).

7 Id. (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)) (citing Monell, 436

U.S., at 665–683).

8 Id. (citing Pembaur, 475 U.S. at 691; City of Canton v. Harris, 489 U.S. 378, 392 (1989);

Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997) (collecting cases)).

9 Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1318 (10th Cir. 1998).

10 Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997); see also City of Canton v.

Harris, 489 U.S. 378, 389 (1989).

A “policy or custom,” in this context, can take the form of (1) a formal regulation

or policy statement; (2) an informal custom amounting to a widespread practice that,

although not authorized by written law or express municipal policy, is so permanent and

well settled as to constitute a custom or usage with the force of law; (3) the decisions of

employees with final policymaking authority; (4) the ratification by such final

policymakers of the decisions—and the basis for them—of subordinates to whom authority

was delegated subject to these policymakers’ review and approval; or (5) the failure to

adequately train or supervise employees, so long as that failure results from deliberate

indifference to the injuries that may be caused.11

Causation, meanwhile, is established if the challenged policy or practice is shown

to be “closely related to the violation of the plaintiff’s federally protected right.”12 “This

requirement is satisfied if the plaintiff shows that the municipality was the ‘moving force’

behind the injury alleged.”13

Finally, the “deliberate indifference standard may be satisfied when the municipality

has actual or constructive notice that its action or failure to act is substantially certain to

result in a constitutional violation, and it consciously or deliberately chooses to disregard

the risk of harm.”14

11 Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Brammer-

Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)).

12 Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013).

13 Id. (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).

14 Quintana v. Santa Fe Cty. Bd. of Comm’rs, 973 F.3d 1022, 1034 (10th Cir. 2020)

(quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)).

c. Assessing the Sufficiency of Copeland’s Allegations in the Amended

Complaint

With this legal framework in mind, the Court finds that Copeland has adequately

alleged facts sufficient to sustain his theory that an affirmative municipal custom, policy,

or practice of using excessive force caused his injuries. As to the existence of a municipal

custom, policy, or practice, Copeland asserts that the City of Lawton has an informal but

widespread practice of using excessive force against restrained suspects that pose no threat

or potential threat to officers or jailers. To that end, he alleges that he was forcefully thrown

into his cell and a police cruiser several times by several different officers and jailers over

the course of his approximately thirty-six hours in custody. Taken together, these

allegations are sufficient to plausibly allege an informal municipal custom at this juncture.

As for causation, the Court can infer that the aforementioned informal practice was

the moving force behind the alleged unconstitutional use of force by virtue of the ubiquity

and frequency of the use of such force. The Court therefore rejects the City of Lawton’s

argument that Copeland has not alleged facts sufficient to show the requisite municipal

custom, policy, or practice and causation.

The Court also finds that Copeland has adequately alleged facts sufficient to sustain

his theory that a culpable failure to train or supervise with respect to the use of excessive

force caused his injuries. As explained earlier, to sustain a 42 U.S.C. § 1983 claim

predicated on a failure to adequately train or supervise, a claimant must demonstrate that

such failure results from “deliberate indifference” to the injuries that may result. Such

“deliberate indifference” is shown where the municipality has actual or constructive notice

that its failure to train or supervise is substantially certain to result in a constitutional

violation, and it consciously or deliberately chooses to disregard the risk of harm. Copeland

has adequately alleged deliberate indifference for much the same reason that he has

adequately alleged an informal municipal custom: He has pleaded facts demonstrating a

recurrent and widespread use of excessive force. If there is, indeed, such use of excessive

force, then it is reasonable to infer that those in charge were or should have been aware of

it. That is enough to establish deliberate indifference at this stage.

As to causation, the Court is satisfied, for purposes of this early inquiry into the

sufficiency of the complaint, that additional training about, or supervision over, the use of

force could have curbed these excesses. The Court therefore rejects the City of Lawton’s

argument that Copeland has insufficiently alleged facts showing deliberate indifference

and causation as to this claim.

As for the claim that an affirmative municipal custom, policy, or practice of

withholding medical care caused his injuries, however, the Court finds the Amended

Complaint deficient. Copeland rattles off a boilerplate list of supposed municipal customs,

policies, and practices that purportedly deprive detainees of adequate medical care. For

example, he alleges the City of Lawton has a custom, policy, or practice of “[u]ntimely

medical examinations and treatment,” of “[u]nderstaffing . . . medical personnel,” and of

disallowing “transport to off-site [medical] providers.” But Copeland fails to provide any

facts in support of these allegations. He points to no formal regulation or policy statement

or evidence of other instances of like deprivation demonstrating an informal custom

amounting to a permanent, well-settled, and widespread practice. Likewise, he points to no

decision of an employee with final policymaking authority or any ratification by a final

policymaker of the decisions of subordinates to whom authority was delegated subject to

that policymaker’s review and approval. In effect, Copeland merely describes the purported

constitutional violation and proclaims it to be standard municipal operating procedure. But

under Iqbal and Twombly, that is not enough.15

In fact, Copeland effectively alleges the opposite—that there is a custom, policy, or

practice of providing timely medical assistance. According to Copeland, an officer brought

him to the hospital immediately after his car accident. After that, as he was being brought

from the hospital to the jail, the transporting officer turned around to bring him back to the

emergency room for a second time. Then, later, he was brought back to the hospital for a

third time.

And even if Copeland did provide sufficient facts to nudge his allegation that there

was a municipal custom, policy, or practice of withholding adequate medical care across

the line to plausibility, there is no allegation of fact or reasonable inference that such

custom, policy, or practice caused the deprivation of medical care of which he now

complains. Rather, to the extent he was deprived of medical treatment, that deprivation is

the product of successive clearances given by medical professionals who may have been

negligent in clearing him. Accordingly, the Court dismisses Copeland’s 42 U.S.C. § 1983

15 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (Although for the purposes of a

motion to dismiss we must take all of the factual allegations in the complaint as true, we

“are not bound to accept as true a legal conclusion couched as a factual allegation.”

(internal quotation marks omitted))).

claims against the City of Lawton predicated on a theory of a municipal custom, policy, or

practice of withholding adequate medical care.

Copeland’s claim that a culpable failure to train or supervise with respect to the

administration of adequate medical care caused his injuries fares no better. As mentioned

earlier, to state a claim for relief under 42 U.S.C. § 1983 resting on a theory of failure to

train or supervise, a claimant must furnish facts sufficient to allege, among other things,

deliberate indifference. Again, deliberate indifference is shown where the municipality has

actual or constructive notice that its failure to train or supervise is substantially certain to

result in a constitutional violation, and it consciously or deliberately chooses to disregard

the risk of harm. Here, Copeland avers that “Defendants knew and/or it was obvious” that

the failure to adequately train or supervise staff “with respect to the proper assessment,

classification[,] and treatment of inmates with serious medical needs including head and

neck trauma” and with respect to the identification, assessment, and reaction to emergent

medical situations “posed an excessive risk to the health and safety of inmates.” Defendants

nevertheless “disregarded th[ese] known and/or obvious risk[s],” Copeland continues. But,

unlike with his excessive force claim, he mentions no pattern of similar incidents that

should have alerted policymakers to the likely prospect of further constitutional violations

absent ameliorative training or supervision, and he provides no facts that would suggest

that policymakers actually knew of ongoing or prospective constitutional violations that

could be rectified with such training or supervision. In effect, Copeland relies solely on

legal conclusions couched as factual allegations and the bald assertion that “it was obvious”

to supply the requisite deliberate indifference. But, again, that is not enough. !°

And even if the Court were to accept Copeland’s argument that the risk posed by

these failures to train “was obvious,” and therefore deliberate indifference is alleged, what

is not obvious is how additional training or supervision “with respect to the proper

assessment, classification[,] and treatment of inmates with serious medical needs including

head and neck trauma” and the identification, assessment, and reaction to emergent medical

situations would have made any difference in the face of the successive opinions of medical

professionals. In other words, Copeland’s claim that a culpable failure to train caused him

to be deprived of adequate medical treatment also fails because he does not plausibly allege

causation, as is necessary to state a claim for municipal liability under 42 U.S.C. § 1983.

Conclusion

For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss as

to the claims of municipal liability against the City of Lawton predicated on the deprivation

of adequate medical care and DENIES Defendants’ Motion to Dismiss as to the claims of

municipal liability against the City of Lawton predicated on the use of excessive force.

IT IS SO ORDERED this 25th day of May 2021.

UNITED STATES DISTRICT JUDGE

16 See id.

14