The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RAMIRO RAMIREZ, an individual, )
)
Plaintiff, )
)
v. ) Case No. CIV-21-00971-JD
)
KAY COUNTY JUSTICE FACILITIES )
AUTHORITY, a public trust doing )
business as Kay County Detention )
Center; TURN KEY HEALTH )
CLINICS LLC, a domestic limited )
liability company; CALLIE GRAY, )
individually; JOSEPHINE OTOO, )
individually; DON JONES, individually )
and in his official capacity as Director )
of the Kay County Detention Center; )
FNU LNU John, Joe & Sergeant Doe, )
individually, as yet unidentified )
Detention Officers, )
)
Defendants. )
ORDER
Before the Court is Callie Gray (“Gray”), Josephine Otoo (“Otoo”), and Turn Key
Health Clinics, LLC’s (“Turn Key”) (collectively “Defendants”) Joint Motion to Dismiss
(“Motion”). [Doc. No. 40]. The Motion seeks dismissal of the claims against them in
Plaintiff Ramiro Ramirez’s (“Ramirez”) Amended Complaint. [Doc. No. 35].1 Ramirez
responded in opposition [Doc. No. 41], and Defendants replied [Doc. No. 42]. For the
following reasons, the Court dismisses Ramirez’s Eighth Amendment claims against
1 The Amended Complaint is accompanied by exhibits 1 through 11. See [Doc.
Nos. 35-1–35-6 (exhibits 1–6), 36-1–36-5 (exhibits 7–11)].
Gray and Otoo under Federal Rule of Civil Procedure 12(b)(6) and otherwise denies the
Motion.
I. BACKGROUND2
At the time of the events giving rise to this action, Ramirez was in custody at the
Kay County Detention Center (“KCDC”). Turn Key contracted with KCDC and was
responsible for providing all medical services to the individuals detained there. Turn Key
was the authorized decision-maker for all medical services. Turn Key employed Gray and
Otoo as nurses.
While detained, Ramirez complained to KCDC officers that he was experiencing
loss of vision, chest pain, left sided weakness, headache, and inability to physically stand
or walk. KCDC officers took Ramirez to the nurse’s station where he was evaluated by
Gray. Ramirez told Gray that he was experiencing chest pain, pain down his left arm, and
left sided weakness. Gray had access to his records which reflected that he had very high
blood pressure and glucose levels. Gray phoned Otoo who was working remotely. After
listening to Gray and reviewing Ramirez’s records, Otoo told Gray to give him
nitroglycerin and call back if needed.
Ramirez took the nitroglycerin, and his chest pain somewhat improved. He
returned to his cell. Then, his condition began to worsen with his left arm drawn and
contracted, and he was transported to the emergency room. At the emergency room, the
doctor determined Ramirez had a stroke but was outside the window for stroke
2 The Court recounts only the alleged facts relevant to its analysis and those
needed to provide context.
intervention.
Ramirez filed this suit and brought claims against Defendants for negligence and
violations of the Eighth Amendment under 42 U.S.C. § 1983.
II. LEGAL STANDARD
“Rule 12(b)(6) dismissal ‘is appropriate if the complaint alone is legally
insufficient to state a claim.’” Serna v. Denver Police Dep’t, 58 F.4th 1167, 1169 (10th
Cir. 2023) (quoting Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081,
1104–05 (10th Cir. 2017)). The Court must “view the allegations and all reasonable
inferences in favor of the plaintiffs.” Hubbard v. Okla. ex rel. Okla. Dep’t of Hum. Servs.,
759 F. App’x 693, 696 (10th Cir. 2018) (unpublished).
In considering a motion to dismiss under Rule 12(b)(6), the inquiry is “whether the
complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’”
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible
‘when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Doe v. Woodard, 912
F.3d 1278, 1299 (10th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions” and “whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 678, 679.
III. ANALYSIS
A. Ramirez has failed to allege plausible Eighth Amendment claims
against Gray and Otoo.
Ramirez argues that Gray and Otoo were deliberately indifferent to his serious
medical needs. He also says that whether Gray and Otoo were subjectively aware of an
excessive risk to his health “is not a question to be answered in a motion to dismiss.”
[Doc. No. 41 at 15].
“[D]eliberate indifference to serious medical needs of prisoners constitutes” an
Eighth Amendment violation. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “To establish
an Eighth Amendment claim based on inadequate medical care, the prisoner must prove
both an objective component and a subjective component.” Redmond v. Crowther, 882
F.3d 927, 939 (10th Cir. 2018). “Under the objective inquiry, the alleged deprivation
must be ‘sufficiently serious’ to constitute a deprivation of constitutional dimension. In
addition, under the subjective inquiry, the prison official must have a ‘sufficiently
culpable state of mind.’” Self v. Crum, 439 F.3d 1227, 1230–31 (10th Cir. 2006)
(citations omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Here,
Defendants concede that Ramirez has plausibly alleged the objective component, so the
Court focuses its analysis on the subjective component.
For the subjective component, officials must know of and disregard “an excessive
risk to inmate health or safety.” Farmer, 511 U.S. at 837. “[T]he official 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. “In addition, [defendants] who
actually knew of a substantial risk to inmate health or safety may be found free from
liability if they responded reasonably to the risk, even if the harm ultimately was not
averted. A [defendant’s] duty under the Eighth Amendment is to ensure ‘reasonable
safety’. . . .” Id. at 844 (quoting Helling v. McKinney, 509 U.S. 25, 33 (1993)). More
specifically, “the subjective component can be satisfied under two theories: failure to
properly treat a serious medical condition (‘failure to properly treat theory’) or as a
gatekeeper who prevents an inmate from receiving treatment or denies access to someone
capable of evaluating the inmate’s need for treatment (‘gatekeeper theory’).” Lucas v.
Turn Key Health Clinics, LLC, 58 F.4th 1127, 1137 (10th Cir. 2023).
For the failure to properly treat theory, courts consider whether “[t]he patient’s
medical issue obviously required ‘additional medical care and referral.’” Id. at 1138
(quoting Self, 439 F.3d at 1232). For example, if “a medical professional fails to treat a
medical condition so obvious that even a layman would recognize the condition, e.g., a
gangrenous hand or a serious laceration,” the subjective component of the failure to
properly treat theory would be met. Self, 439 F.3d at 1232. However, “‘a prisoner who
merely disagrees with a diagnosis or a prescribed course of treatment does not state a
constitutional violation . . . .’” Id. at 1231 (quoting Oxendine v. Kaplan, 241 F.3d 1272,
1277 n.7 (10th Cir. 2001)).
For the gatekeeper theory, courts consider whether the medical professional has
“fulfilled their sole obligation to refer or otherwise afford access to medical personnel
capable of evaluating a patient’s treatment needs when such an obligation arises.” Lucas,
58 F.4th at 1139. “‘[A] good faith effort to diagnose and treat [the inmate’s] medical
condition’” will satisfy this obligation; “‘completely refus[ing] to assess or diagnose’ the
potential . . . emergency” will not. Self, 439 F.3d at 1232 (second brackets in Self and first
and third brackets and ellipses added) (quoting Mata v. Saiz, 427 F.3d 745, 761, 758
(10th Cir. 2005)).
When Ramirez was brought to Gray, she recorded his symptoms. She then called
Otoo and relayed Ramirez’s condition. Both nurses were aware that Ramirez had a
history of cardiac disease and diabetes, and that he was currently complaining of pain and
weakness in his chest and on his left side. Otoo told Gray to give Ramirez nitroglycerin.
This alleged conduct does not meet the requirements for either the failure to properly
treat or gatekeeper theory. The Tenth Circuit has held that “the subjective component was
not met where a prison nurse misdiagnosed an inmate’s chest pains as the flu, and failed
to recognize symptoms suggesting an impending heart attack.” Id. at 1231 (citing Sealock
v. Colorado, 218 F.3d 1205, 1208, 1211, 1212 n.7 (10th Cir. 2000)). Similarly here,
although the nurses may have misdiagnosed Ramirez’s condition, that is not enough to
show they consciously disregarded an obvious and substantial risk to Ramirez. Their
decision to give him nitroglycerin for these symptoms was not unreasonable. Further, the
Amended Complaint includes no allegations suggesting Gray and Otoo completely
refused to assess or diagnose Ramirez. Gray called Otoo about Ramirez’s condition. Otoo
prescribed treatment and told Gray to call back as needed.
Therefore, the Court concludes that Ramirez has failed to state plausible Eighth
Amendment claims against Gray and Otoo. The Court dismisses these claims against
both nurses without prejudice.
B. Ramirez has plausibly alleged an Eighth Amendment claim against
Turn Key.3
Turn Key argues that Ramirez failed to plead any factual basis sufficient to show
that its customs or practices caused an alleged constitutional deprivation. It contends that
Ramirez’s constitutional claims should be dismissed against Turn Key because he only
provides unparticularized allegations.
“[A] municipality can be found liable under § 1983 only where the municipality
itself causes the constitutional violation at issue. Respondeat superior or vicarious
liability will not attach under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989)
(emphasis omitted) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658
(1978)). “[A] plaintiff seeking to impose liability on a municipality under § 1983” must
“identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of Cnty.
Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997). An entity is not
liable under § 1983 “unless deliberate action attributable to the municipality itself is the
‘moving force’ behind the plaintiff’s deprivation of federal rights.” Id. at 400 (emphasis
omitted).
Municipal liability may exist when there is “a systemic failure of medical policies
and procedures.” Lucas, 58 F.4th at 1144. Systemic failure can serve as the underlying
constitutional violation for purposes of Monell liability. See id. (“[I]t was error for the
district court to not consider a systemic failure as the underlying constitutional
3 Defendants do not dispute that Turn Key is a state actor for purposes of § 1983.
violation . . . .”).4
According to the Amended Complaint, Turn Key is the final decision-making
authority with respect to all medical services provided by KCDC. It has established
customs such as “failing to adequately assess and treat . . . obvious or known symptoms
of emergent and life-threatening conditions of KCDC inmates requiring offsite medical
care” and “avoiding emergency transport and offsite medical care, especially for serious
and expensive conditions.” [Doc. No. 35 at 37, 39]. Turn Key also “fails to provide
adequate staffing to perform all the tasks it contracts to provide” and “fail[s] to train and
supervise medical and KCDC jail staff in the assessment and care of inmates with
complex or serious medical needs.” [Id. at 37, 38]. These policies and customs represent
systemic failures that have resulted in multiple inmate deaths and injuries.5 They also
caused Ramirez’s injuries which include “temporary and permanent physical disability,
pain, [and] suffering.” [Id. at 9].
These allegations, taken as true, show that there was a systemic failure, of Turn
4 Since the Court concludes that Ramirez has not stated plausible constitutional
claims against Gray and Otoo, its Monell analysis is premised on whether he has alleged
there was an underlying constitutional violation via systemic failure of medical policies
and procedures.
5 Specifically, Ramirez alleges that Turn Key’s customs and failures have caused
(1) an inmate, who was “left in a restraint chair for over 48 hours,” to die; (2) an inmate
to be found “naked, unconscious, and covered in his own feces after having experienced
seizure activity that went untreated and unaddressed;” (3) an inmate’s death “from a
blood clot in his lungs,” which despite repeated complaints, “[was] disregarded by
responsible staff;” (4) an inmate to become “permanently paralyzed after jail staff failed
to provide him treatment after repeated complaints of pain in his back and chest;” and (5)
an inmate to die since the medical staff did not provide treatment “for over two weeks
despite clear indication of his serious medical condition.” [Id. at 38].
Key policies or customs,6 that caused Ramirez’s injuries, to which Turn Key was
deliberately indifferent. See Brown, 520 U.S. at 407–08 (“[T]he existence of a pattern of
tortious conduct by inadequately trained employees may tend to show that the lack of
proper training . . . is the ‘moving force’ behind the plaintiff’s injury.”); City of Canton,
489 U.S. at 390 (“[I]t may happen that in light of the duties assigned to specific officers
or employees the need for more or different training is so obvious and the inadequacy so
likely to result in the violation of constitutional rights, that the policymakers of the city
can reasonably be said to have been deliberately indifferent to the need.”).
Thus, Ramirez has plausibly alleged a constitutional violation and the “three
elements” needed “to succeed on a Monell claim: ‘(1) an official policy or custom, (2)
causation, and (3) deliberate indifference.’” Buchanan v. Turn Key Health Clinics, LLC,
No. 22-7029, 2023 WL 6997404, at *7 (10th Cir. Oct. 24, 2023) (unpublished) (quoting
Lucas, 58 F.4th at 1145). The Court therefore does not dismiss the Eighth Amendment
claim against Turn Key.
6 “Any of the following constitute an official policy: ‘(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.’” Lucas, 58 F.4th at 1145
(quoting Crowson v. Washington Cnty. Utah, 983 F.3d 1166, 1184 (10th Cir. 2020)).
Ramirez alleges facts that go to several of these bases. However, at this stage, the Court
does not need to determine which precise theory would be successful.
C. The Court declines to dismiss Ramirez’s negligence claims against
Defendants.
The parties dispute whether Defendants are entitled to immunity under the
Oklahoma Governmental Tort Claims Act (“OGTCA”). Okla. Stat. tit. 51, § 151, et seq.
Defendants argue that the Oklahoma Supreme Court’s opinion in Barrios “squarely
addressed” this issue, and that they are entitled to immunity as a result. Barrios v. Haskell
Cnty. Pub. Facilities Auth., 432 P.3d 233, 241 (Okla. 2018). Ramirez argues that
Defendants are not entitled to immunity because they are not covered under the
OGTCA’s definition of “employee.”
“An employee of the state or its political subdivision who operates or maintains a
jail or correctional facility is exempt from state tort liability under the OGTCA.” Lucas,
58 F.4th at 1147 (citing Okla. Stat. tit. 51, § 155(25)). The term “employee” includes
“licensed medical professionals under contract with city, county, or state entities who
provide medical care to inmates or detainees in the custody or control of law enforcement
agencies.” Okla. Stat. tit. 51, § 152(7).
“In a footnote in Barrios v. Haskell County Public Facilities Authority, 432 P.3d
233, 236 n.5 (Okla. 2018), the Oklahoma Supreme Court stated, ‘Generally speaking, the
staff of a healthcare contractor at a jail are “employees” who are entitled to tort immunity
under the [O]GTCA.’” Bond v. Regalado, No. 22-5065, 2023 WL 7014047, at *3 (10th
Cir. Oct. 25, 2023) (unpublished). However, district courts have been instructed that, on a
motion to dismiss, it is “premature” to determine whether healthcare contractors and
prison nurses “[are] entitled to immunity based on Barrios’s non-binding legal
assumption, which was decidedly not an express statement of law.” Lucas, 58 F.4th at
1148. Instead, “the proper route” for district courts to take “is to determine the OGTCA’s
applicability to private corporations — and their employees — that contract with the state
to provide medical services at the summary judgment stage if the factual record is
sufficiently developed and the facts are uncontroverted.” /d.
Thus, the Court determines that Ramirez’s allegations do not conclusively
establish that Defendants are entitled to immunity under the OGTCA. Based on the Tenth
Circuit’s instruction in Lucas, the Court declines to dismiss the negligence claims against
Defendants on this ground at the pleading stage.
IV. CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion to Dismiss [Doc. No.
40] as to the Eighth Amendment claims against Gray and Otoo and DENIES the Motion
as to the remaining claims. The Court DISMISSES the Eighth Amendment claims against
Gray and Otoo without prejudice.
IT IS SO ORDERED this 28th day of May 2024.
UNITED STATES DISTRICT JUDGE
11