Marlatt v. Murray County Jail

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF OKLAHOMA

JEFFREY LYNN MARLATT, )

)

Plaintiff, )

v. )

)

(1) MURRAY COUNTY BOARD ) Case No. 6:22-cv-168-JAR

OF COUNTY COMMISSIONERS, )

(2) DARIN ROGERS, and )

(3) ROBERT DALE HURT, )

)

Defendants. )

OPINION AND ORDER

Before the Court is the joint motion for summary judgment [Doc. 83]1 of

defendants Murray County Board of County Commissioners (the “County”) and Darin

Rogers in his official and/or individual capacity as Sheriff of Murray County. Plaintiff

Jeffrey Lynn Marlatt timely responded [Doc. 85], and the moving defendants filed a

joint reply [Doc. 88].

This case arises from an inmate-on-inmate assault in which defendant Robert

Dale Hurt (“Hurt”) struck Plaintiff in the face with his own orthotic walking boot on

October 16, 2021, while both men were confined at the Murray County Jail (“MCJ”)

in Sulphur, Oklahoma. Plaintiff initiated this action on June 2, 2022, alleging

violations of the Oklahoma Constitution, state common law, and his federal rights

under the Eighth and Fourteenth Amendments to the United States Constitution

pursuant to “42 U.S.C. §§ 1983, 1985, and 1988.” [Doc. 2, § I].

I. UNDISPUTED MATERIAL FACTS 2

It is undisputed that both Plaintiff and Hurt are members of the Chickasaw

Nation. Following the United States Supreme Court’s landmark decision in McGirt

v. Oklahoma, 591 U.S. 894 (2020),3 the Chickasaw Lighthorse Police Department

(“Lighthorse”) entered into a multi-year contract with the Murray County Sheriff’s

Office whereby MCJ agreed to accept persons arrested by Lighthorse for violations of

tribal criminal law in exchange for $50.00 per day for each Chickasaw prisoner. [Doc.

83-20]. The Sheriff’s Office reserved the right to refuse to house Chickasaw prisoners

when MCJ reached 80% of the maximum capacity allowable by law. [Id. at 2].

A. THE ARREST AND BOOKING OF PLAINTIFF JEFFREY MARLATT

On September 1, 2021, Plaintiff was arrested by Lighthorse on charges of

kidnapping, possession of a firearm by a convicted felon, vandalism, assault, and

reckless conduct with a firearm. [Doc. 83-2]. Plaintiff suffered an injury to his left

ankle during this arrest [Doc. 83-6 at 1], and was immediately transported to MCJ.

[Doc. 83 at 8, ¶ 4, Doc. 85 at 8, ¶ 1]. As Plaintiff was under the influence of alcohol

and methamphetamine at the time of arrest, it was not until the following morning

2 Unless otherwise noted, the following facts are undisputed for summary judgment purposes.

3 On July 9, 2020, the Supreme Court held that, for purposes of the Major Crimes Act, the

Muscogee (Creek) Nation’s Reservation was never disestablished. McGirt, supra, at 937-38. Relying

on McGirt, Oklahoma state courts subsequently ruled that the reservations of the Cherokee,

Chickasaw, Choctaw, and Seminole Nations were never disestablished. See e.g., Bosse v. State, 2021

OK CR 30, ¶ 12, 499 P.3d 771, 774 (affirming trial court’s conclusion that defendant was wrongly tried

in state court because his crime was committed on Chickasaw Nation’s Reservation). McGirt and its

progeny have foreclosed the State of Oklahoma from, among other things, exercising jurisdiction over

defendants who commit crimes within the approximate 33,280 square miles of “Indian country,” as

that he noticed pain in his left ankle and notified the jail administrator, Buffy

Holman (“Admr. Holman”), of said injury. [Doc. 83 at 8, ¶ 5; Doc. 85 at 8, ¶ 1]. Plaintiff

was transported to the Chickasaw Nation Medical Center on September 3, 2021,

where he was prescribed an orthotic walking boot to wear continuously for two weeks,

with exception to sleeping and showering. [Doc. 83 at 9, ¶ 7; Doc. 85 at 8, ¶ 7].

B. THE ARREST AND BOOKING OF DEFENDANT ROBERT HURT

On the evening of October 16, 2021, Hurt was arrested by the Ada Police

Department on charges of burglary and public intoxication. [Doc. 83 at 9, ¶ 12; Doc.

85 at 8, ¶ 1]. He was transported to MCJ by Lighthorse that same day. [Doc. 83 at 9,

¶ 13; Doc. 85 at 9, ¶ 13; Doc. 83-10]. Though Hurt was under the influence of wasp

spray at the time of arrest, he did not exhibit violent behavior during transport to

MCJ and was deemed fit for incarceration by the only jailer on duty that night, James

Russell (“Officer Russell”). [Doc. 83-9 at 3-4 (22:22-23:16); Doc. 83-10 at 2, ¶ 9; Doc.

83-11 (Hurt Transport Video); Doc. 83-12 at 6 (26:7-17), 7 (31:12-23); Doc. 85-4 at 21

(66:16-18)].4 After recording that Hurt was “highly intoxicated” [Doc. 85-4 at 29 (75:4-

24); Doc. 85-6], Officer Russell assigned him to the “north cell” with Plaintiff and two

other inmates. [Doc. 83-12 at 7-8 (31:16-32:16)]. Though Plaintiff and Hurt had

previously shared a cell without incident [Doc. 83-3 at 18-19 (67:3-68:10); Doc. 83-9

at 14-16 (81:7-83:8)],5 Officer Russell testified he would have placed Hurt in a

4 Hurt had previously been booked into MCJ while under the influence of drugs or alcohol but

had never engaged in physical violence. [Doc. 83 at 9, ¶ 15]. Officer Russell testified that he “never

had any problems” with Hurt during their prior encounters. [Doc. 83-12 at 5 (25:8-12)].

segregated cell for detoxification purposes if one had been available. [Doc. 85-4 at 26-

27 (72:3-73:9)]. He believed, however, that housing Hurt with familiar faces would be

safe for all inmates within the north cell. [Doc. 83-12 at 9 (33:1-13)].

C. THE INMATE-ON-INMATE ASSAULT

At approximately 8:30 p.m. on October 16, 2021, Plaintiff removed his orthotic

boot to either sleep or write a letter to his grandmother. [Doc. 83 at 10, ¶ 21; Doc. 85

at 9, ¶21; Doc. 83-3 at 27 (96:4-19)]. While Plaintiff disputes allegations that he

“provoked” Hurt by making a whistle noise after being asked to stop,6 the record

indicates that Hurt struck Plaintiff once in the face with the orthotic boot. [Doc. 83-3

at 24-26 (93:19-95:13), 29-31 (99:13-101:7); Doc. 83-9 at 7-9 (36:18-39:17); Doc. 83-13;

Doc. 83-14]. Officer Russell promptly responded to inmates yelling for assistance,

removed Hurt from the north cell, and alerted dispatch to summon EMS. [Doc. 83-

14]. Hurt was then placed in a restraint chair to await a facility transfer. [Id.].

Plaintiff arrived at Arbuckle Memorial Hospital at 9:03 p.m. on October 16,

2021, presenting with severe facial injury and closed head trauma. [Doc. 83-6 at 1].

After an emergency surgery for initial nasal reconstruction, Plaintiff was released to

the care of accompanying guards. [Id. at 2]. He underwent an additional nasal

reconstruction surgery at the Tecumseh Campus of Norman Regional System on

considers Plaintiff a friend, and that he “loved [Plaintiff] to death.” [Doc. 83-3 at 18-19 (67:3-68:10),

20-21 (71:18-72:6); Doc. 83-9 at 13-15 (80:13-82:2), 15 (82:10-21)].

6 Hurt testified that Plaintiff was “scraping” his albuterol inhaler on the cell floor, making a

“whistling” sound. [Doc. 83-9 at 8 (37:3-24), 10 (39:7-16)]. Hurt asked Plaintiff to stop, as he perceived

Plaintiff’s conduct to be “witchcraft[].” [Id. at 9 (38:5-10)]. Plaintiff abided by Hurt’s request for a

November 9, 2021. [Id. at 7]. Prior to the attack, there were no instances of anyone

at MCJ taking possession or control of Plaintiff’s orthotic boot [Doc. 83 at 9, ¶ 8; Doc.

85 at 8, ¶ 8], and Plaintiff testified he was never concerned the boot could be used as

a weapon against him. [Doc. 83-3 at 27-28 (96:12-97:8)]. The boot was not returned to

Plaintiff following Hurt’s assault. [Doc. 83-6 at 2].

II. PROCEDURAL HISTORY

On September 24, 2024, the Court held an in-person hearing on the moving

defendants’ pending motion for summary judgment to resolve, among other things, a

lack of clarity in Plaintiff’s complaint. [Doc. 93].

A. SUMMARY OF CLAIMS ASSERTED BY PLAINTIFF

The complaint asserts an indistinct number of state and federal claims against

seven defendants. Plaintiff has since dismissed four defendants – Kent McKinley,

Colt Williams, Darrell Hudson, and Murray County Jail. [Doc. 60; Doc. 82].7 The

remaining defendants are the County, Sheriff Rogers, and Hurt. Though Hurt has

not moved for summary judgment, this Order will briefly discuss the claims (if any)

pled solely against Hurt.8

1. No Remaining Claims under State Law

Plaintiff alleges in his complaint that all seven defendants violated his rights

under article II, § 30 of the Oklahoma Constitution. [Doc. 2, § XI]. The complaint also

suggests a negligence claim against the Sheriff for violation of his duties under Okla.

7 The remaining parties expressly consented to the complete jurisdiction of the undersigned

Stat. tit. 57, § 52. [Id., § XV]. During the motion hearing on September 24, 2024,

however, Plaintiff voluntarily dismissed all state-law claims asserted against the

County and Sheriff Rogers, without objection.

2. Remaining Claim under Federal Law

While originally claiming all seven defendants violated his rights under the

Eighth and Fourteenth Amendments pursuant to 42 U.S.C. §§ 1983, 1985, and 1988

[Id., §§ I, X], Plaintiff has since conceded that he has no claims under §§ 1985 and

1988. [Doc. 85 at 8]. Thus, Plaintiff’s only remaining federal claim is against the

County and Sheriff Rogers for violation of his constitutional right to be free from

punishment as a pretrial detainee. Plaintiff seeks actual and punitive damages under

§ 1983 as compensation for past and future medical expenses, physical and emotional

pain and suffering, loss of earnings, attorney fees, and court costs. [Doc. 2, § XVII].

B. JOINT MOTION FOR SUMMARY JUDGMENT

Plaintiff’s complaint is not a model of clarity, and the moving defendants

identify a number of supervening issues in their summary judgment motion. The

moving defendants are correct that it is unclear from the complaint whether Plaintiff

is asserting a § 1983 claim against the Sheriff in his individual capacity, official

capacity, or both. [Doc. 83 at 14; id. at 25 (noting “Plaintiff has not made any

supervisory liability claim against the Sheriff.”)]. In return, Plaintiff asserts for the

first time in his summary judgment response that “Sheriff Roger’s liability arises

from his personal involvement of supervisor responsibility [sic].” [Doc. 85 at 20]. In

the section preceding such assertion, however, Plaintiff refers to this action as an

“official-capacity lawsuit.” [Id. at 15].9

Consequently, the moving defendants argue that the County and Sheriff

Rogers, in his official and/or individual capacity, are not liable on Plaintiff’s § 1983

claim because (1) Plaintiff’s constitutional rights were not violated; (2) Plaintiff

cannot prove an official jail policy or custom caused the alleged constitutional

deprivation; and (3) Plaintiff cannot establish a failure to train. Sheriff Rogers argues

in the alternative that, to the extent Plaintiff purports to hold him personally liable

under § 1983, he is entitled to qualified immunity in his individual capacity. And the

County contends it is not a proper party if Plaintiff is suing the Sheriff is his official

capacity only. [Doc. 83 at 20; Doc. 88 at 13].

In response, Plaintiff initially argues the County is a proper party because this

action is brought against Sheriff Rogers as the final policymaker for MCJ. [Doc. 85 at

16]. He then contends, however, that the County is distinctly liable under § 1983 for

its own actions and inactions with respect to the county commissioners’ control over

jail funding and authority to contract with entities like the Chickasaw Nation. [Id. at

17-19]. Plaintiff further argues that Sheriff Rogers violated his constitutional rights

by permitting chronic overcrowding and understaffing at MCJ, by maintaining a

custom of allowing jailers to disregard official jail policies and procedures, and by

failing to adequately train jailers like Officer Russell. [Id. at 21-25].

III. GOVERNING LEGAL STANDARDS

A. MOTION FOR SUMMARY JUDGMENT

Summary judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). Material facts are those facts that might affect

the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A “dispute about a material fact is ‘genuine’ when the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At

the summary judgment stage, the Court’s task “is not ‘to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue

for trial.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson, 477 U.S. at

249). “In making that determination, a court must view the evidence ‘in the light most

favorable to the opposing party.’” Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S.

144, 157 (1970)). However, “[w]here the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)).

B. SUBSTANTIVE REQUIREMENTS FOR CLAIMS UNDER 42 U.S.C. § 1983

Section 1983 provides a cause of action for “the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws” by any person acting

under color of state law. 42 U.S.C. § 1983. Accordingly, a successful § 1983 plaintiff

must show: (1) that a right secured by the Constitution or laws of the United States

was violated, and (2) “that the alleged violation was committed by a person acting

under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

1. Official Capacity Liability

An official capacity suit is, in all respects other than name, to be treated as a

suit against the entity. Griess v. Colorado, 841 F.2d 1042, 1045 (10th Cir. 1988); see

Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (“To the extent [plaintiff]

brings a claim against [the sheriff] in his official capacity, it is the same as bringing

a suit against the county.”). The Supreme Court has recognized, however, that a

municipality “may not be held liable under § 1983 solely because it employs a

tortfeasor.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, (“Brown”) 520 U.S. 397,

403 (1997); Brown v. Montoya, (“Montoya”) 662 F.3d 1152, 1164 (10th Cir. 2011)

(“Section 1983 does not authorize liability under a theory of respondeat superior.”). A

municipality is liable under § 1983 only when the constitutional injury can fairly be

said to have been caused by its own official policy or custom. Monell, 436 U.S. at 694.

“The ‘official policy’ requirement was intended to distinguish between acts of

the municipality from acts of employees of the municipality, and thereby make clear

that municipal liability is limited to actions for which the municipality is actually

responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). “A challenged

practice may be deemed an official policy or custom for § 1983 municipal-liability

purposes if it is 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). A successful § 1983 plaintiff must “show that the policy was enacted

or maintained with deliberate indifferent to an almost inevitable constitutional

injury.” Id. at 769. The “deliberate indifference” requirement has three elements: (1)

official policy or custom, (2) causation, and (3) state of mind. Id. at 769-71.

2. Individual Capacity / Supervisory Liability

Individual-capacity suits seek to impose personal liability upon a government

official for actions taken under color of state law. Kentucky v. Graham, 473 U.S. 159,

165 (1985) (citations omitted). Thus, “an award of damages against an official in his

[individual] capacity can be executed only against the official’s personal assets.” Id.

at 166. If prison officials are sued under § 1983 in their individual capacity based on

a theory of supervisory liability, as may be the case here, the plaintiff must

demonstrate the defendant-official personally violated his constitutional rights. See

Keith v. Koerner, 843 F.3d 833, 837 (10th Cir. 2016). To successfully do so, the

plaintiff must show an “affirmative link” between the defendant-official’s challenged

conduct and the alleged deprivation. Schneider v. City of Grand Junction Police Dep’t,

717 F.3d 760, 767 (10th Cir. 2013) (quoting Dodds v. Richardson, 614 F.3d 1185, 1196

(10th Cir. 2010)). The “affirmative link” requirement has three elements: (1) personal

involvement, (2) causation, and (3) a culpable state of mind. Ibid.

3. Qualified Immunity

Application of the summary judgment standard slightly differs where, as here,

an individual defendant asserts the affirmative defense of qualified immunity.

Qualified immunity protects government officials from liability for harm caused by

reasonable mistakes. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation

omitted). When qualified immunity is asserted in the context of a motion for summary

judgment, evidence beyond the allegations in the complaint is considered and the

summary judgment standard detailed above is applied. See Ashcroft v. Iqbal, 556 U.S.

662 (2009). Courts analyzes a defendant’s entitlement to qualified immunity through

a two-pronged inquiry in which either prong may be considered first. See Pearson,

supra, at 236. To overcome this defense, the plaintiff bears the burden of establishing

that the defendant violated a clearly established constitutional right. See Dist. of

Columbia v. Wesby, 583 U.S. 48, 62-63 (2018). In this regard, the Court considers: (1)

“whether the facts that a plaintiff has … shown 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.” Pearson, supra, at 232 (citation omitted).

A right is clearly established if “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Courtney v. Okla. ex rel. Dep’t

of Pub. Safety, 722 F.3d 1216, 1222 (10th Cir. 2013).

4. Claims under § 1983 for Failure to Protect

The Eighth Amendment applies only after an adjudication of guilt and does

not apply directly to pretrial detainees like Plaintiff. Nevertheless, the Supreme

Court and the Tenth Circuit have held that the Eight Amendment’s protections apply

to pretrial detainees through the Due Process Clause of the Fourteenth Amendment.

See Bell v. Wolfish, 441 U.S. 520, 535-37 (1979); Garcia v. Salt Lake Cnty., 768 F.2d

303, 307 (10th Cir. 1985); Barrie v. Grand Cnty., Utah, 119 F.3d 862, 867 (10th Cir.

1997). If a plaintiff can establish a violation of the Eighth Amendment, he can

establish his Fourteenth Amendment rights as a pretrial detainee have been violated.

The Eighth Amendment imposes a duty on jail officials to “provide humane

conditions of confinement,” including “taking reasonable measures to guarantee the

safety of inmates.” Hooks v. Atoki, 983 F.3d 1193, 1205 (10th Cir. 2020) (quoting

Farmer v. Brennan, 511 U.S. 825, 833 (1994)). This overarching obligation includes

a duty “to protect prisoners from violence at the hands of other prisoners.” Ibid.

(quoting Farmer, supra, at 833). The Supreme Court has held that being violently

assaulted in prison is not “part of the penalty that criminal offenders pay for their

offenses against society.” Farmer, supra, at 832-34 (quoting Rhodes v. Chapman, 452

U.S. 337, 347 (1981)). “It is not, however, every injury suffered by one prisoner at the

hands of another that translates into constitutional liability for prison officials

responsible for the victim’s safety.” Id. at 834. To hold a municipal defendant liable

for violating an inmate’s right to safety, a § 1983 plaintiff must satisfy both an

objective and subjective component. Ibid.

IV. DISCUSSION

The Court first considers whether Sheriff Rogers is entitled to qualified

immunity in his individual capacity on Plaintiff § 1983 failure to protect claim, and

then turns to whether Plaintiff has rebutted the moving defendants’ contention that

his constitutional rights were not violated.

A. INDIVIDUAL CAPACITY LIABILITY | SHERIFF ROGERS

Plaintiff claims the Sheriff violated his clearly established right to be free from

cruel and unusual punishment as a pretrial detainee, and specifically alleges that the

severe injuries he sustained from an inmate-on-inmate assault directly resulted from

chronic issues with overcrowding at MCJ, understaffing, and a failure to follow

official jail policy. According to Plaintiff, despite having knowledge of the serious risks

these alleged conditions posed to inmate safety, Sheriff Rogers made no attempt to

remedy such conditions. [Doc. 85 at 21-25]. The Sheriff argues that, to the extent

Plaintiff purports to hold him liable under § 1983 as a jail supervisor, he is entitled

to qualified immunity.

As stated, to overcome this defense, Plaintiff bears the burden of showing that

his constitutional right was clearly established at the time he alleges the Sheriff

violated such right, i.e., on October 16, 2021. See Courtney, 722 F.3d at 1222. To make

this showing, Mr. Womble “must point to a Supreme Court or Tenth Circuit decision

on point, or the clearly established weight of authority from other courts must have

found the law to be as [he] maintains.” Callahan v. Unified Gov’t of Wyandotte Cty.,

806 F.3d 1022, 1027 (10th Cir. 2015) (internal quotation marks and citation omitted).

In his response opposing summary judgment, Plaintiff has identified multiple

authorities that recognize an Eighth Amendment right to reasonable protection from

attack by other inmates. See [Doc. 85 at 15]. Plaintiff has alleged far more than a

failure to protect on the part of Sheriff Rogers, however, and has failed to provide any

authorities pertaining to his underlying allegations of overcrowding, understaffing,

and the Sheriff’s acquiescence to his jailers’ custom of ignoring official jail policy. See

Hope v. Pelzer, 536 U.S. 730, 741 (2002) (noting the contours of a clearly established

right must be “sufficiently clear that a reasonable official would understand that

what he is doing violates that right”).

Plaintiff need not identify a case holding the exact conduct in question

unlawful, but the Court’s focus remains on whether the law at the time of Sheriff

Roger’s challenged conduct provided him with “fair notice” regarding the legality of

such conduct. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). Though

Plaintiff makes generalized allegations that conditions at MCJ necessarily increased

the risk of inmate violence, he was unable to respond to the defendants’ motion for

summary judgment with evidence of specific acts of inmate violence occurring before

October 16, 2021, to which the Sheriff was aware and deliberately ignored. In fact, in

the decade leading up to the assault at issue, only a few minor tussles between

inmates were recorded at MCJ. [Doc. 83-4 at 13 (109:7-17); Doc. 83-17 at 12 (60:4-15);

Doc. 83-19 at 2-3]. See Ziglar v. Abbasi, 582 U.S. 120, 152 (2017) (“[I]f a reasonable

officer might not have known for certain that the conduct was unlawful – then the

officer is immune from liability.”).

Under these principles, the Court must conclude that a reasonable official in

the Sheriff’s position would not have known, and could not have predicted, that being

the supervisor of a jailer who unilaterally chose to house Plaintiff with a historically

nonviolent inmate at a jail that experienced no serious inmate-on-inmate assaults

within the preceding decade constituted a violation of Plaintiff’s constitutional right

to be free from cruel and unusual punishment. This conclusion is further supported

by the undisputed fact that Sheriff Rogers had no personal involvement in, or

firsthand knowledge of, any of the events concerning Hurt’s assault. See Dodds, 614

F.3d at 1195-96. Accordingly, to the extent Plaintiff purports to hold the Sheriff

personally liable under § 1983, the Court finds Sheriff Rogers is entitled to qualified

immunity in his individual capacity.

B. DELIBERATE INDIFFERENCE ANALYSIS

The standard governing Plaintiff’s § 1983 claim against the County and Sheriff

Rogers, in his official capacity, is that of deliberate indifference. Deliberate

indifference, as a standard of liability, requires more than ordinary lack of due care

for a prisoner’s safety; rather, the standard lies “somewhere between the poles of

negligence at one end and purpose or knowledge at the other.” Farmer, 511 U.S. at

836. But “only those deprivations denying the minimal civilized measure of life’s

necessities . . . are sufficiently grave to form the basis of an Eighth Amendment

violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). As noted, to establish deliberate

indifference based on a failure to protect, a § 1983 plaintiff must satisfy both an

objective and subjective component.

To satisfy the objective component of a deliberate indifference claim under the

Eighth Amendment, “the alleged deprivation must be ‘sufficiently serious’ to

constitute a deprivation of constitutional dimension.” Self v. Crum, 439 F.3d 1227,

1230 (10th Cir. 2006) (citing Farmer, 511 U.S. at 834). “[T]he purpose for this

requirement is to limit claims to significant, as opposed to trivial, suffering.” Mata v.

Saiz, 427 F.3d 745, 753 (10th Cir. 2005). Consequently, courts look to the alleged

injury claimed by the plaintiff and to determine “whether that harm is sufficiently

serious.” Ibid. This Court finds that the undisputed harm suffered by Plaintiff –

severe facial injuries resulting from an inmate-on-inmate assault – is itself sufficient

to satisfy the objective requirement of the deliberate indifference test.

Plaintiff must still satisfy the subjective component, which requires an

“inquiry into a prison official’s state of mind when it is claimed that the official has

inflicted cruel and unusual punishment.” Farmer, 511 U.S. at 838. It is not enough

to allege that prison officials failed “to alleviate a significant risk that [they] should

have perceived but did not.” Ibid. To meet the subjective requirement, Plaintiff must

show that the County and/or Sheriff Rogers were “aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists” and that they

actually “[drew] that inference.” Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.

1996) (quoting Farmer, supra, at 834). Plaintiff “need not show that a prison official

acted or failed to act believing that harm actually would befall an inmate; it is enough

that the official acted or failed to act despite his knowledge of a substantial risk of

serious harm.” Farmer, supra, at 842. In sum, “a prison official may be held liable

under the Eighth Amendment for denying humane conditions of confinement only if

he knows that inmates face a substantial risk of serious harm and disregards that

risk by failing to take reasonable measures to abate it.” Id. at 847. The Court first

addresses Plaintiff’s allegations of deliberate indifference against the County,

followed by his allegations against Sheriff Rogers.

1. As Applied to the Board of County Commissioners

The deliberate indifference standard for individuals is the same standard to be

applied to the County on Plaintiff’s § 1983 claim. The standard is, however, applied

differently to governmental entities in two very significant respects. First, “the

causation standard for governmental entity is articulated differently.” Winton v. Bd.

of Comm’rs of Tulsa Cnty., Okla., 88 F.Supp.2d 1247, 1257 (N.D. Okla. 2000). Second,

“as applied to an individual prison official, Farmer instructs that the deliberate

indifference standard is subjective standard requiring actual knowledge of a risk by

the official.” Ibid. When addressing the County’s liability, however, “deliberate

indifference is an objective standard which is satisfied if the risk is so obvious that

the governmental entity should have known of it.” Ibid. (citing Barney v. Pulsipher,

143 F.3d 1299, 1308 n.5 (10th Cir. 1998)).

“A governmental entity cannot absolutely guarantee the safety of those it

incarcerates.” Id. at 1262. Nonetheless, “governmental entities have a constitutional

duty under the Eighth Amendment to take reasonable steps to protect a prisoner’s

safety and bodily integrity.” Id. (citing Berry v. City of Muskogee, Okla., 900 F.2d

1489, 1499 (10th Cir. 1990)). Governmental entities are not, however, generally

responsible for constitutional violations committed by its agents or employees. Again,

there is no respondeat superior liability under § 1983. For a governmental entity to

be held liable under § 1983, it must have caused the harm through its own

unconstitutional policies, and not merely for the acts of its employees. Monell, 436

U.S. at 694. By focusing on a policy or custom, the Court ensures that the entity “is

held liable only for those deprivations resulting from the decisions of its duly

constituted legislative body or of those officials whose acts may fairly be said to be

those of the [governmental entity].” Brown, 520 U.S. at 403-04. Thus, to hold a

municipality liable, a § 1983 plaintiff must establish that “(1) he has been deprived

of a constitutionally protect right, and (2) that a governmental policy or custom was

the moving force behind the constitutional deprivation.” Monell, 436 U.S. at 694;

Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1317 (10th Cir. 1998).

Those whose edicts can fairly be said to bind a governmental entity are those

officials who are responsible for establishing final policy on a given subject matter.

An act by a final policymaker is an act of official government “policy.” The moving

defendants do not deny that Sheriff Rogers was the final policymaker for the County

with regard to day-to-day operations at MCJ.10 Thus, there can be no dispute that for

purposes of liability under § 1983, the conduct of Sheriff Rogers is also the conduct of

the County with respect to jail operations. See Myers, supra, at 1319; Pembaur, 475

U.S. at 481. While Plaintiff acknowledges this § 1983 action must be brought against

the County because Sheriff Rogers is the final policymaker for MCJ,11 he also argues

that the County is separately liable under § 1983 because it is “responsible for

10 Under Oklahoma law, the County has no statutory duty to hire, train, supervise, or

discipline county sheriffs or their deputies. The County is, however, required to inspect jails at least

once a year to examine conditions. Okla. Stat. tit. 57, § 1. Nevertheless, in Oklahoma the sheriff is

ultimately responsible for the proper management of the jail in his county and the conduct of his

deputies. Id. §§ 47, 52, 54; Okla. Stat. tit. 19, §§ 513, 547(A);

providing the physical jail structure.” [Doc. 85 at 17 (citing Okla. Stat. tit. 57, § 51)].12

The County breached this statutory duty, according to Plaintiff, by approving

contracts to house Lighthorse arrestees, by failing to allocate funds for improvements

and/or expansion, by not building a new county jail, and by failing to allocate

additional funds for hiring. [Id. at 17-19]. He further claims the County’s actions and

inactions caused or contributed to overcrowding, understaffing, inadequate jail

facilities, insufficient surveillance systems, and an inability to segregate intoxicated

inmates in accordance with official jail policy. [Ibid.].

Plaintiff appears to suggest that the County also has final policymaking

authority through its control of jail funding and, therefore, was equally responsible

for the jail policies and practices that gave rise to the injuries alleged. Oklahoma law,

however, clearly sets out the roles of the Sheriff and the County. See Okla. Stat. tit.

19 §§ 339, 513, 547. Unless the County voluntarily undertook responsibility for

hiring, supervising, and promulgating jail policies – which is not alleged – the County

was not “affirmatively linked” with the any constitutional deprivations. Plaintiff has

failed to provide any evidence showing the County assumed responsibility for

operating MCJ or for the training and/or supervision of jail personnel. He merely

claims that since the County has control over jail funding and is statutorily

responsible for “warming the county jail” and “mak[ing] such repairs as may be

prescribed by the district judge or the State Department of Health” pursuant to Okla.

12 Okla. Stat. tit. 57, § 51 provides in pertinent part that “[i]t shall be the duty of the county

Stat. tit. 57, § 51, the County therefore has shared control over all MCJ policies and

procedures.

Alternatively, Plaintiff alleges the challenged practices and conditions at MCJ

were widespread and the County had full knowledge of the same. Plaintiff, however,

fails to show that the purported need for corrective action was so obvious, and the

inadequacy so likely to result in a violation of constitutional rights, that the County

was deliberately indifferent to the need. See Canton v. Harris, 489 U.S. 378, 390

(1989). Plaintiff has failed to show how the County’s alleged failure to remedy the

challenged practices and conditions at the jail, of which fell within the Sheriff’s realm

of statutory responsibility, directly resulted in a violation of his constitutional right

to safety. The County’s request for summary judgment is therefore granted. The

Court again notes that, for purposes of liability under § 1983, the conduct of Sheriff

Rogers is also the conduct of the County with respect to jail operations. See Myers,

151 F.3d at 1319; Pembaur, 475 U.S. at 481. Thus, the County may be held liable if

Plaintiff prevails on his § 1983 claim against the Sheriff in his official capacity.

2. As Applied to Sheriff Rogers, Officially

Plaintiff’s § 1983 claim against Sheriff Rogers for failure to protect is braced

by a slew of distinct accusations. Specifically, Plaintiff alleges that the Sheriff (a)

failed to ensure jailers properly classified and separated intoxicated inmates, such as

Hurt, from the general population at MCJ; (b) failed to adequately staff the jail and

ignored chronic overcrowding; (c) failed to adequately train jailers; and (d) should

have direct jailers to remove Plaintiff’s orthotic boot from his cell on a nightly basis.

According to Plaintiff, Sheriff Rogers’ deliberate indifference to these known

conditions was the moving force behind the deprivations alleged.

a. Failure to Classify and Separate Intoxicated Inmates

MCJ maintained written policies and procedures for booking intoxicated

inmates, of which provide in pertinent part:

If the injury, illness, or emotional state of the inmate appears serious,

the staff shall contact the jail administrator and: [] refuse acceptance of

custody and recommend that the arresting officer seek medical attention

for the inmate [or] [] not accept custody until the arresting officer

provides documentation of the inmate’s medical treatment.

Inmates requiring detoxification or booked on drug use charges will be

placed in a holding cell for 6 to 12 hours or until sober and observed

every 30 minutes.. . . The inmate will not be placed in the general

population unit until after this time period.

[Doc. 85-8 at 13, § 2-3(2)-(3)]. MCJ also had more specific procedures regarding how

to classify and house inmates [Id. at 22, § 3-1], as well as what measures must be

taken when an inmate requires separation from the general inmate population.

Administrative Segregation shall be employed to separate from the

general population who . . . pose a serious threat to themselves and/or

others[.]

The recommendation to administratively segregate an inmate shall be

referred to the jail administrator. Identification of such inmates shall be

made as follows: [] Each staff member has the responsibility to observe

the behavior of each inmate and identify those who meet the criteria

listed above.

[Id. at 25, § 3-3]. Plaintiff make several arguments with respect to his contention that

Sheriff Rogers knowledge of and acquiescence to his jailers ignoring official

classification and detoxification policies presented a substantial risk of serious harm

to inmates at MCJ.

First, Plaintiff argues that official policy required that Officer Russell classify

Hurt with a history of violent or disruptive behavior and with evidence of mental

disability. [Doc. 85 at 21; Doc. 85-8 at 22, § 3-1]. Plaintiff misconstrues the deposition

testimony of Admr. Holman to support this conclusory allegation, however.13 The

record indicates that Hurt had never been physically violent at MCJ prior to

assaulting Plaintiff,14 and that Hurt has never been diagnosed with a mental

disability. Plaintiff essentially contends that Officer Russell should have classified

Hurt with a nonexistent history of physical violence and an undiagnosed mental

disability.

Next, Plaintiff argues that Officer Russell should have followed official policy

by placing Hurt in a segregated holding cell upon booking, as he was admittedly

under the influence of wasp spray. [Doc. 85 at 22; Doc. 85-8 at 13, § 2-3]. The record

shows that, in accordance with § 2-3(1) of MCJ policy, Officer Russell observed the

physical condition and behavior of Hurt and determined he was fit for incarceration.

[Doc. 83-12 at 7 (31:9-15)]. Though § 2-3(3) of MCJ policy requires that inmates

booked under the influence of drugs be placed in a holding cell until sober, the only

13 Plaintiff asserts Admr. Holman testified that “Hurt should have been classified as a history

[sic] of violent or disruptive behavior and mental issues[.]” [Doc. 85 at 22 (citing Doc 85-10 at 7-8 (23-

24)]. But the cited testimony contains only an affirmative, two-word response – i.e., “Yes, sir” – to the

following questions: (1) “Mr. Hurt did have a history of violence or aggression being able to flip a switch

and go aggressive; correct?”; and (2) “It may not have been diagnosed, but people were under the

impression [Hurt] might have some mental disability or mental issues going on?” [Doc. 85-10 at 7

(23:13-21)].

14 It is undisputed that Hurt was typically booked while intoxicated and had been previously

booked while under the influence of wasp spray. Though Hurt’s demeanor during his many bookings

holding cell at MCJ was occupied at the time Hurt was booked. Rather than contact

Admr. Holman or the Sheriff to inquire into whether Hurt should be released or

placed in the general population [Doc. 83-12 at 7 (31:8-11)], Officer Russell placed

Hurt in the north cell with Plaintiff and two other inmates – all of whom had

previously shared cells with Hurt without incident. [Id. at 7-8 (31:17-33:19)]. In any

event, as it is undisputed that the single holding cell at MCJ was typically

unavailable, Plaintiff has sufficiently established a custom maintained by jailers of

ignoring official inmate detoxification procedures.15

Plaintiff has nevertheless failed to draw any link between this custom and

Sheriff Roger’s actual knowledge of and deliberate indifference to a serious risk that

an intoxicated, yet historically nonviolent, detainee would attack Plaintiff upon being

placed in the north cell. There is nothing in the record to indicate that the Sheriff –

or Officer Russell for that matter – knew Hurt was so intoxicated that he posed a

danger to himself or others, appreciated the risk caused by assigning Hurt to the

north cell with other inmates, and then deliberately disregarded Hurt’s mental state

and the associated safety risks. And it cannot be said that Sheriff Rogers was

deliberately indifferent to a known risk that the custom of ignoring segregation

procedures posed to inmates because, in the decade prior to the incident at issue, only

a few minor tussles between inmates occurred at MCJ. [Doc. 83-4 at 13 (109:7-17);

15 For a municipality to be held liable for an unofficial policy under § 1983, the practice must

be “so permanent and well settled as to constitute a custom or usage with the force of law,” and “[i]n

order to establish a custom, the actions must be persistent and widespread . . . practices of [county]

officials.” Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996) (internal quotations and

Doc. 83-17 at 12 (60:4-15); Doc. 83-19 at 2-3]. See Winton, 88 F.Supp.2d at 1260

(quoting Farmer, 511 U.S. at 842-43) (to prove actual knowledge on the part of a

defendant-official, an Eighth Amendment plaintiff must “present[] evidence showing

that a substantial risk of inmate attacks was longstanding, pervasive, well-

documented, or expressly noted by prison officials in the past”).

Viewing the record in a light most favorable to Plaintiff, the Court finds that

there is insufficient evidence from which a reasonable jury could conclude that Sheriff

Rogers was actually aware of a significant risk of harm to inmate safety at MCJ, that

he failed to take reasonable steps to abate the risk, and that the jailers’ custom of

failing to follow official classification and segregation policies was the moving force

behind the conditions which gave rise to Hurt’s assault on Plaintiff.

b. Overcrowding / Understaffing

Plaintiff has provided evidence to support his allegations that the Oklahoma

State Department of Health (“OSDH”) has “documented widespread and pervasive

denial” by MCJ concerning its noncompliance with “federally mandated minimum

cell space”16 and capacity restrictions. [Doc. 85 at 21; Doc. 85-11]. While Plaintiff

relies on page 53 of Hurt’s deposition to support his allegation that Hurt was agitated

by an overcrowded cell, Plaintiff failed to attach page 53 to his response in opposition

to summary judgment. In any event, Hurt testified that he assaulted Plaintiff

because Plaintiff continued making a whistling and/or scraping noise with his inhaler

after being asked to stop. [Doc. 83-9 at 7-9 (36:21-38:17)].

In determining whether overcrowding violates a constitutional right, the Court

must not simply look to the fact of overcrowding, but rather the aggregate effect. See

Rhodes, 452 U.S. 337. Mere discomfort which poses no risk to health and safety does

not implicate the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 9 (1992).

According to an OSDH inspection of MCJ in May of 2017, the north cell within which

Hurt assaulted Plaintiff is 323 square feet with 244.25 square feet of unencumbered

space and a calculated capacity of 10 inmates. [Doc. 85-11 at 2]. A total of 4 inmates,

including Plaintiff and Hurt, were housed in the north cell on the night at issue. [Doc.

83-12 at 7-8 (31:24-32:16)]. The Court finds that the census and floor space in the

north cell at the time of Hurt’s assault complied with both state and federal

standards.17 Even if the north cell had been overcrowded at the time of Hurt’s assault,

Plaintiff has pointed to no evidence that could show Sheriff Rogers was aware that

overcrowding at MCJ would result in an inmate-on-inmate assault and was

deliberately indifferent to such risk.

Plaintiff also alleges that MCJ was understaffed the night he was assaulted.

He contends Sheriff Rogers knew MCJ was insufficiently staffed – posing a safety

risk to prisoners – and failed to take steps to remedy the situation. [Doc. 85 at 25].

17 See [Doc. 85-11 at 2 (citing Okla. Jail Standard 310:670-5-11(a)(2) (“All cells and living areas

shall have at least forty (40) square feet of floor space for the initial prisoner and at least twenty (20)

Defendants contend there is no evidence that additional staff would have prevented

the attack from occurring. [Doc. 88 at 4]. Although Plaintiff presents evidence that

MCJ previously received violation notifications from OSDH regarding insufficient

staffing, he has failed to show how the Sheriff’s alleged failure to properly staff MCJ

caused Hurt to assault him. The record indicates that Officer Russell promptly

responded to distress calls emanating from the north cell and separated Hurt from

the other inmates. Even if a jailer had been standing watch in front of the north cell,

this Court cannot reasonably conclude that said jailer could have prevented the

attack because Hurt hit Plaintiff with the boot only once. Moreover, Plaintiff cites no

authority in support of the proposition that an understaffed jail can create a

dangerous situation for inmates.

Viewing the record in a light most favorable to Plaintiff, the Court finds that

there is insufficient evidence from which a reasonable jury could conclude that Sheriff

Rogers was actually aware of a significant risk of harm to inmate safety at MCJ, that

he failed to take reasonable steps to abate the risk, and that the alleged understaffing

at MCJ was the moving force behind the conditions which gave rise to Hurt’s assault.

c. Failure to Adequately Train Jail Staff

There are highly limited circumstances where inadequacy in training can be a

basis for § 1983 liability. See Canton, 489 U.S. at 388. “A municipality’s culpability

for a deprivation of rights is at its most tenuous where a claim turns on a failure to

train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted). Only where a

failure to train “reflects a ‘deliberate’ or ‘conscious’ choice by a municipality . . . can a

city be liable for such a failure under § 1983.” Canton, supra, at 389. To establish a

failure to train on the part of Sheriff Rogers, Plaintiff must prove three things: (1) the

existence of a jail policy or custom involving deficient training; (2) the policy or

custom’s causation of an injury; and (3) the adoption of the policy or custom with

deliberate indifference. Lance v. Morris, 985 F.3d 787, 800 (10th Cir. 2021).

On the first element, Plaintiff contends that there “was no formal training

program in place” at MCJ. [Doc. 85 at 23-24]. As his summary judgment evidence

includes an official jail policy on staff training [Doc. 85-8 at 4-5, § 1-2], the Court

presumes Plaintiff is alleging a custom of deficient training. As evidence of this

purported custom, Plaintiff points to various portions of Officer Russell’s deposition

testimony and the undisputed fact that he was the only jailer on duty on the night of

October 16, 2021. To start, Officer Russell testified that he had never worked in a jail

before beginning his employment at MCJ in June of 2021. [Doc. 84-5 at 9-10 (8:9-

9:12), 16 (10:16-18)]. His initial training at MCJ consisted of shadowing Admr.

Holman and another jailer for “a week of two.” [Id. at 15 (13:2-19)]. While Plaintiff

attempts to attribute deficiencies in Officer Russell’s initial training to the Sheriff,

the record indicates new jailer training was provided by the Oklahoma Sheriff’s

Association, not the Murray County Sheriff’s Office. [Doc. 83-17 at 10 (11-20)]. Officer

Russell did not receive new jailer training because the Oklahoma Sheriff’s

Association did not provide such training during the COVID pandemic. [Doc. 83-4 at

11-12 (105:15-106:11); Doc. 83-17 at 10 (50:11-23)].

Next, Plaintiff contends that Officer Russell “never felt confident on the job”

and “never felt like he knew the policies and procedures” at MCJ. [Doc. 85 at 23 (citing

Doc. 85-4 at 25 (71:13-20)]. Sheriff Rogers argues that whether Officer Russell ever

felt confident with regard to jail policies is irrelevant. [Doc. 88 at 12]. Indeed, that a

particular officer may be unsatisfactorily trained will not alone suffice to fasten

liability under § 1983, for the officer’s shortcoming may have resulted from factors

other than a faulty training program. Canton, 489 U.S. at 390-91 (citations omitted).

Moreover, the record suggests that annual jailer training was provided by OSDH, not

the Murray County Sheriff’s Office. [Doc. 83-4 at 11 (105:12-14)]. Like the Oklahoma

Sheriff’s Association, OSDH did not provide annual jailer training during the COVID

pandemic. Doc. 83-4 at 11-12 (105:15-106:11); Doc. 83-17 at 10 (50:11-23)]. As he

began working at MCJ three months before Hurt assaulted Plaintiff, Officer Russell

had not yet received annual jailer training from the Oklahoma Sheriff’s Association.

As stated, inadequacy in training may serve as the basis for liability under §

1983 “only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a

municipality.” Canton, 489 U.S. at 389. There is no evidence in the record that Sheriff

Rogers deliberately failed to train jailers, including Officer Russell. In fact, Admr.

Holman was responsible for training jailers on official MCJ policy, of which was

provided to the best of Admr. Holman’s ability. [Doc. 83-17 at 10 (50:4-10)]. Plaintiff

has also failed to establish a “custom” of insufficient training at MCJ.18 Viewing the

record in a light most favorable to Plaintiff, the Court finds that there is insufficient

evidence from which a reasonable jury could conclude that Sheriff Rogers was

actually aware of a significant risk of harm to inmate safety at MCJ, that he failed to

take reasonable steps to abate the risk, and that his alleged failure to train jail staff

was the moving force behind the conditions which gave rise to Hurt’s assault.

d. The Orthotic Boot

Finally, Plaintiff contends that official jail policy regarding prosthetic devices

was ignored and allowed for Hurt to assault Plaintiff with his orthotic boot. [Doc. 85

at 24]. This official policy provides in relevant part:

Inmates who are admitted wearing prosthetic devices will have those

devices searched. The following steps will be taken:

a. Inspect the device and review the inmate’s file to determine whether

or not the device itself or the inmate’s history and behavior with the

device pose any security risk.

b. If a security risk exists, consult with the facility administrator to

determine the inmate’s medical need for the device. If the facility

administrator decides that the inmate’s health will not be jeopardized

by the removal of the device during confinement, the device will be

removed, tagged and stored.

[Doc. 85-8 at 47, § 6-9(2)(a)-(b)].

The record indicates that Plaintiff was prescribed to wear the walking boot for

two weeks, except when sleeping and showering.19 The record does not indicate that

a safety search of Plaintiff’s boot was performed by jailers in accordance with § 6-9(2)

of MCJ policy. As the boot was plastic and contained metal rods, jailers could have

determined the device posed a security risk. [Doc. 85-7 at 20 (73:9-22)]. Plaintiff

19 Jail staff had difficulty scheduling a two-week follow-up appointment for Plaintiff because

testified, however, that he was never concerned the boot could be used as a weapon

against him and “would have slept with [the boot] on” if he had such concerns. [Doc.

83-3 at 28 (97:5-8, 22-15)]. In addition, it is undisputed that there were no prior

instances of inmates taking possession or control of Plaintiff’s orthotic boot; Admr.

Holman testified that all jail personnel were aware Plaintiff was prescribed an

orthotic boot and that jailers conducted their nightly cell checks on an hourly basis

[Doc. 85-7 at 21 (74:7-13)]; and Sheriff Rogers testified that he never discussed the

handling of Plaintiff’s boot with any jailers, as this issue fell within Admr. Holman’s

domain of responsibility pursuant to official jail policy. [Doc. 83-4 at 5-6 (18:17-19:21);

Doc. 85-8 at 47, § 6-9(2)(a)-(b)].

Plaintiff nevertheless contends that “jail policy was ignored” because his boot

should have been removed on a nightly basis. [Doc. 85 at 24]. But the policy at issue

provides that, if Admr. Holman determines the dangers of a prosthetic device

outweigh the inmate’s need for the same, the device must be removed during the

entire course of that inmate’s confinement. See [Doc. 85-8 at 47, § 6-9(2)(b)]. Plaintiff

has painted himself in a corner by arguing that jailers ignored § 6-9(2) because jail

staff did not arbitrarily deviate from § 6-9(2).

Viewing the record in a light most favorable to Plaintiff, the Court finds there

is insufficient evidence from which a reasonable jury could conclude that Sheriff

Rogers was actually aware of a significant risk of harm that Plaintiff’s orthotic boot

posed to inmate safety at MCJ, that he failed to take reasonable steps to abate the

risk, and that the jailers’ alleged custom of failing to follow the official prosthetic

device policy in accordance with Plaintiff’s preferred method of deviation from said

policy was the moving force behind the conditions which gave rise to Hurt’s assault.

Sheriff Rogers is therefore entitled to summary judgment in his official capacity on

the § 1983 claim asserted against him.

V. PLAINTIFF HAS NO REMAINING CLAIMS

Having carefully reviewed the complaint in a light most favorable to Plaintiff,

the Court finds no apparent connection between the allegations therein to any

discernible claim against defendant Hurt. As stated, counsel for Plaintiff conceded at

the motion hearing on September 24, 2024 that Plaintiff has no claims under 42

U.S.C. §§ 1985 or 1988. Hurt cannot be held liable under Plaintiff’s remaining § 1983

claim because, at all relevant times, he was a private citizen rather than a state actor.

See Beedle v. Wilson, 422 F.3d 1059, 1071 (10th Cir. 2005) (quoting Dennis v. Sparks,

449 U.S. 24, 27 (1980)) (noting a private citizen cannot be held liable under § 1983

unless he was a “willful participant in joint action with the State or its agents.”). The

Court therefore concludes that Plaintiff has asserted no federal claims against Hurt.

Counsel for Plaintiff also voluntarily dismissed all state law claims asserted

against the Board and Sheriff Rogers during the motion hearing. As noted, Plaintiff’s

complaint alleges that all defendants violated his rights under article II, § 30 of the

Oklahoma Constitution and suggests a negligence claim against the Sheriff for

violation of his duties under Okla. Stat. tit. 57, § 52.20 Hurt cannot be held liable

under the latter claim, as he is not a sheriff with duties prescribed by Oklahoma law.

Plaintiff’s only remaining claim is an excessive force action brought under article II,

§ 30 of the Oklahoma Constitution pursuant to Bosh v. Cherokee County Building

Authority, 305 P.3d 994 (Okla. 2013), superseded by statute as stated in Barrios v.

Haskell Cnty. Pub. Fac. Auth., 432 P.3d 233 (Okla. 2018). 21 See [Doc. 2, §§ XI-XII].

Even if Bosh excessive force actions were still viable, Hurt cannot be held liable under

such claim because, at all relevant times, he was a private citizen rather than a state

actor. Consequently, the Court finds that Plaintiff has failed to assert any discernible

state claims against Hurt.

VI. CONCLUSION

While it may reasonably be inferred that the County, Sheriff Rogers and/or his

subordinates were negligent in their fulfillment or non-fulfillment of relevant duties

prescribed by Oklahoma law, the Oklahoma Jail Standards and/or official MCJ

policy, the Court concludes that the municipal defendants’ challenged conduct does

not rise to the level of a deliberately indifferent violation of Plaintiff’s constitutional

right to be free from cruel and unusual punishment. Furthermore, while Plaintiff

could have brought a state claim for assault against Hurt and potentially recovered

21 In 2014, “the [Oklahoma] Legislature . . . responded to Bosh by amending the [Oklahoma

Governmental Torts Act (“OGTCA”)] to specify that the State’s immunity from suit extended even to

torts arising from alleged deprivations of constitutional rights.” Barrios, 432 P.3d at 238; see Okla.

Stat. tit. 51, § 152(14) (re-defining “tort” to include violations of the “Constitution of the State of

Oklahoma”); Id. § 153(B) (providing that liability of a political subdivision under the OGTCA “shall be

exclusive and shall constitute the extent of tort liability of the state, a political subdivision or employee

under the same, the Court concludes that Plaintiff’s complaint contains no discernible

state or federal claims against Hurt.

IT IS THEREFORE ORDERED that the joint motion for summary judgment

of defendants Darin Rogers, in his official capacity as Murray County Sheriff, and the

Murray County Board of County Commissioners [Doc. 83] is granted.

IT IS FURTHER ORDERED that defendant Robert Dale Hurt is terminated

as a party.

DATED this 29th day of October, 2024.

_______________________________________

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE