# Barlean v. Oklahoma County Criminal Justice Authority

> District Court, W.D. Oklahoma · October 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10666147

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** October 11, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10666147

## How later opinions describe it (automated extraction)

- explaining that “[w]hile we generally construe pro se pleadings liberally, the same courtesy need not be extended to licensed attorneys”
- explaining that “substantial harm” may include “lifelong handicap, permanent loss, or considerable pain” (citation omitted)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

KELLY J. BARLEAN, )
)
Plaintiff, )
)
v. ) Case No. CIV-23-00488-JD
)
OKLAHOMA COUNTY CRIMINAL )
JUSTICE AUTHORITY, et al., )
)
Defendants. )

ORDER
Before the Court is Defendant Oklahoma County Criminal Justice Authority’s
(“OCCJA”) Motion to Dismiss Plaintiff Kelly J. Barlean’s Amended Complaint
(“Motion”) [Doc. No. 12]. The operative complaint is Mr. Barlean’s First Amended
Complaint (“FAC”) [Doc. No. 8]. Mr. Barlean brings this 42 U.S.C. § 1983 action
against OCCJA under a municipal liability theory, and he brings his Title II of the
Americans with Disabilities Act (“ADA”) claim against OCCJA under a respondeat
superior liability theory. See FAC ¶ 5. Barlean’s claims against OCCJA stem from his
eight-day pretrial detention at the Oklahoma County Detention Center (“OCDC”) in June
2021. Barlean filed a response in opposition (“Response”) [Doc. No. 34] to OCCJA’s
Motion. No reply was filed by OCCJA.
OCCJA moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss
Barlean’s claims against it. Specifically, OCCJA moves to dismiss Counts 1, 2, 13, 14,
and 17 for failure to state a claim upon which relief can be granted.1 For the reasons
stated below, the Court grants the Motion to the extent specified in this Order.
I. BACKGROUND

The Court’s previous Order denying Plaintiff’s Motions to Deem Allegations
Admitted by Defendants Jesse Childers, Dustin Willis, Brandon Lee, Taylor Ray, and
Adrian Dominguez Solis [Doc. No. 69] provides a recitation of the factual background of
this action and is incorporated herein by reference. Accordingly, this Order will reiterate
only what is necessary to address OCCJA’s Motion.

II. LEGAL STANDARDS
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although a complaint does not need detailed factual assertions, a pleading that
offers only “labels and conclusions” or “pleads facts that are merely consistent with a
defendant’s liability” will not suffice. Id. (internal quotation marks and citations omitted).

1 OCCJA further moves to dismiss Counts 15 and 16, but those Counts in the FAC
cannot fairly be construed as being brought against OCCJA. Mr. Barlean also concedes
Counts 15 and 16 are not brought against OCCJA. See Response at 11 (“Count Sixteen of
the [FAC] specifically states it is against only guard John Doe #2”); id. at 10 (arguing
that Count 15 is against Roe and based on “Roe’s actions”). Barlean has sued the
individual defendants in their individual capacities. Thus, the Court does not address
OCCJA’s arguments relating to Counts 15 and 16.
The burden is on the plaintiff to plead factual allegations that “raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555.
Under this standard, the Court accepts all well-pled factual allegations as true and

views the allegations in the light most favorable to the nonmoving party. Peterson v.
Grisham, 594 F.3d 723, 727 (10th Cir. 2010). “This is not to say that the factual
allegations must themselves be plausible; after all, they are assumed to be true. It is just
to say that relief must follow from the facts alleged.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008). Conclusory statements, however, are not entitled to the

assumption of truth and courts are free to disregard them. Khalik v. United Air Lines, 671
F.3d 1188, 1191 (10th Cir. 2012). The Rule 12(b)(6) standard does not require that a
plaintiff establish a prima facie case in his complaint, but the elements of each cause of
action help to determine whether the plaintiff has set forth a plausible claim. Id. at 1192.
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that

the parties might present at trial, but to assess whether the plaintiff’s complaint alone is
legally sufficient to state a claim for which relief may be granted.” Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009) (citation omitted).
Although Mr. Barlean “proceeds pro se, he is not entitled to have his filings
liberally construed because he is a trained attorney.” See McNamara v. Brauchler, 570 F.

App’x 741, 743 (10th Cir. 2014) (unpublished); see also Mann v. Boatright, 477 F.3d
1140, 1148 n.4 (10th Cir. 2007) (explaining that “[w]hile we generally construe pro se
pleadings liberally, the same courtesy need not be extended to licensed attorneys”)
(internal citations omitted). This also includes disbarred attorneys. See McNamara, 570
F. App’x at 743 n.2 (explaining that the purpose of liberal construction of pro se filings is
not furthered by liberally construing a legally trained individual’s filings).
III. ANALYSIS

A. The Court dismisses without prejudice Mr. Barlean’s alleged disability
discrimination claims in Count 1 as to OCCJA.

Count 1 of the FAC alleges violations of the ADA2 and § 504 of the Rehabilitation
Act (“RA”) against Defendants OCCJA, Mark Winchester (“Dr. Winchester”),3 and Turn
Key Health Clinics, LLC (“Turn Key”).4 OCCJA contends that Mr. Barlean has failed to
allege a plausible claim under the ADA because Mr. Barlean cannot establish he is
disabled within the meaning of the ADA. Specifically, OCCJA contends that Barlean
provides “no proof” of a “prescription in 2021” for a CPAP5 machine, “no proof of

2 As noted above, Barlean brings his ADA action against OCCJA under a
respondeat superior liability theory. See FAC ¶¶ 5, 79. The Court assumes without
deciding that this theory applies. Cf. A.V. through Hanson v. Douglas Cnty. Sch. Dist.
RE-1, 586 F. Supp. 3d 1053, 1067 (D. Colo. 2022) (“Absent any binding authority to the
contrary from within the Tenth Circuit, the Court will follow the guidance from the other
circuit courts which have concluded that Title II of the ADA provides for respondeat
superior liability.”).

3 Mr. Barlean withdraws his ADA claim against Dr. Winchester in his Response.
Response at 4. An ADA or RA claim cannot proceed against individual defendants; the
proper defendant is the government agency. See 42 U.S.C. § 12131; see also Jaros v. Ill.
Dep’t of Corr., 684 F.3d 667, 670 (7th Cir. 2012) (recognizing that employees of the
governmental agency “are not amenable to suit under the [RA] or the ADA”). Thus, the
Court dismisses with prejudice Count 1 to the extent it seeks to impose liability on Dr.
Winchester.

4 Turn Key and Dr. Winchester have filed a separate joint motion to dismiss [Doc.
No. 18], which the Court will address by separate order.

5 For informational purposes only, the Court notes that a CPAP (a Continuous
Positive Airway Pressure) machine “uses mild air pressure to keep . . . airways open
disability or limitations from interrupted or delayed treatment,” and no proof of a
complete diagnosis of sleep apnea in 1999.6 Motion at 13–14.7
In response, Barlean contends that he is a qualified individual disabled within the

meaning of Title II of the ADA and § 504 of the RA. Response at 4–5. Barlean attaches
to his Response pages 2 and 3 of the 1999 sleep study he underwent at Providence
General Medical Center in Everett, Washington, on July 13, 1999. [Doc. No. 34-3 at 2–
4]. Also attached is a Nasal CPAP 1 Study conducted on November 21, 1999, at the same
facility following Barlean’s ENT surgery. See id. at 5–6. This study concludes that

Barlean tolerated “the use of [a] nasal CPAP with very significant therapeutic benefit
noted . . . in [a] patient with severe obstructive sleep apnea.” See id. at 5. In that same
report, Dr. O’Connor recommends that Barlean “undertake nasal CPAP therapy at 11 cm
water pressure with a 5- to 10-minute ramp time and heated humidification with the mask
to be fitted with a suggestion that a Profile Gold Seal light mask be considered for home

while you sleep” and is prescribed by physicians “to treat sleep-related breathing
disorders including sleep apnea.” See https://www.nhlbi.nih.gov/health/health-
topics/topics/cpap (last visited Oct. 10, 2024).

6 Attached to the FAC is only page 1 of 3 of a 1999 sleep study at Providence
General Medical Center in Everett, Washington, performed on July 13, 1999. [Doc. No.
8-6]. Pages 2 and 3 are missing, and the conclusions appear to relate only to the initial
phase of the study and are incomplete. See id. In analyzing a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, the Court may consider documents that the
complaint incorporates by reference, documents referred to in the complaint that are
central to the plaintiff’s claims and as to which the parties do not dispute authenticity, and
matters of which the Court may take judicial notice. See Gee v. Pacheco, 627 F.3d 1178,
1186 (10th Cir. 2010).

7 The Court uses CM/ECF page numbering from the top of docket filings in this
Order.
use.” See id. at 6. Dr. O’Connor indicates that a “prescription for this therapy has been
provided.” See id. Additionally, Barlean attaches a printout from the United States
Department of Veterans Affairs website for “Kelly” showing a 100 percent combined

disability rating and a 50 percent individual rating for a service-connected disability of
obstructive sleep apnea with an effective date of January 11, 2019. [Doc. No. 34-4 at 2].
However, any new factual allegations contained in Barlean’s Response cannot
amend the allegations contained in his FAC. Therefore, the Court looks to the FAC to
determine the sufficiency of Barlean’s allegations under Federal Rule of Civil Procedure

12(b)(6). See Fed. R. Civ. P. 7(b); Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 771
F.3d 697, 706 (10th Cir. 2014) (“We have recognized the importance of Fed. R. Civ. P.
7(b) and have held that normally a court need not grant leave to amend when a party fails
to file a formal motion.”) (quoting Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181
F.3d 1180, 1186 (10th Cir. 1999)). See also Earles v. Cleveland, 418 F. Supp. 3d 879,

892 n.3 (W.D. Okla. 2019), aff’d, 825 F. App’x 544 (10th Cir. 2020) (unpublished)
(disregarding factual allegations in the plaintiff’s response brief that were beyond the
scope of her complaint because a plaintiff may not effectively amend a complaint by
alleging new facts in a response to a motion to dismiss).
Under Title II of the ADA, “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. “This provision extends to discrimination against
inmates detained in a county jail.” Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500
F.3d 1185, 1193 (10th Cir. 2007). A plaintiff may establish an ADA discrimination claim
either by direct evidence of discrimination or by satisfying the burden-shifting framework
of McDonnell Douglas.8 See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1192 (10th Cir.

2018). Under that framework, the plaintiff bears the initial burden of establishing a prima
facie case of discrimination. See id. The burden then shifts to the defendant to produce a
“legitimate, non-discriminatory reason” for the adverse action. See id. at 1193 (quoting
McDonnell Douglas, 411 U.S. at 802). If the defendant articulates a sufficient reason, the
burden shifts back to the plaintiff to show that the “stated reason is a pretext for

discrimination.” Id.
The McDonnell Douglas requirement that a plaintiff establish a prima facie case
“is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510 (2002).9 Although Mr. Barlean need not establish a prima facie case of
discrimination under the ADA in his FAC to survive a motion to dismiss, the Court still

looks to the elements of his claim to help determine whether he has set forth a plausible
claim. See Khalik, 671 F.3d at 1192. To state a discrimination claim under the ADA, a
“plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was

8 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

9 In clarifying the role of the McDonnell Douglas framework in a Rule 12(b)(6)
analysis, the Tenth Circuit has explained that “[w]hile the 12(b)(6) standard does not
require that [the plaintiff] establish a prima facie case in [the] complaint, the elements of
each alleged cause of action help to determine whether [the plaintiff] has set forth a
plausible claim.” See Khalik, 671 F.3d at 1192; see also Morman v. Campbell Cnty.
Mem’l Hosp., 632 F. App’x 927, 933 (10th Cir. 2015) (unpublished) (“The inferences
offered by the McDonnell Douglas framework assist judges in resolving motions to
dismiss by providing an analytical framework to sift through the facts alleged.”).
excluded from participation in or denied the benefits of a public entity’s services,
programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was
by reason of a disability.” Robertson, 500 F.3d at 1193. Conversely, an ADA “failure to

accommodate claim is evaluated under a modified McDonnell Douglas burden-shifting
framework.”10 Lincoln, 900 F.3d at 1204. Thus, under the modified framework, “a
plaintiff must demonstrate that (1) he is disabled; (2) he is otherwise qualified; and (3) he
requested a plausibly reasonable accommodation.” See id. (brackets, internal quotation
marks, and citations omitted).11 If a plaintiff makes that showing, “the burden ‘shifts to

the [defendant] to present evidence either (1) conclusively rebutting one or more
elements of plaintiff’s prima facie case or (2) establishing an affirmative defense, such as

10 See Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784, 792 (10th Cir. 2020)
(reiterating that ADA failure to accommodate claims are evaluated under a modified
McDonnell Douglas burden-shifting framework). Under the ADA, the term “discriminate
against a qualified individual on the basis of disability” includes “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability.” See 42 U.S.C. § 12112(b)(5)(A). It makes an exception for
those covered entities that “can demonstrate that the accommodation would impose an
undue hardship on the operation” of their business. See id. “Because any failure to
provide reasonable accommodations for a disability is necessarily because of disability,”
naturally a plaintiff “need not prove the [defendant’s] motivation or intent to discriminate
to prevail on a failure to accommodate claim.” See Lincoln, 900 F.3d at 1204 (internal
quotation marks and citation omitted). Thus, courts evaluate such claims under a
modified McDonnell Douglas burden-shifting framework. See id.

11 See Aubrey v. Koppes, 975 F.3d 995, 1005 (10th Cir. 2020) (noting that
“[e]stablishing a prima face claim is not onerous” and identifying four elements a
plaintiff must show to establish a prima facie failure to accommodate claim: (1) the
plaintiff was disabled, (2) the plaintiff was otherwise qualified, (3) the plaintiff requested
a plausibly reasonable accommodation, and (4) the defendant refused to accommodate
the plaintiff’s disability).
undue hardship . . . .’” See Lincoln, 900 F.3d at 1204 (quoting Punt v. Kelly Servs., 862
F.3d 1040, 1050 (10th Cir. 2017)).
Here, the parties do not address McDonnell Douglas or its burden-shifting

framework. Nevertheless, the Court concludes that Mr. Barlean has failed to state either
an ADA discrimination claim or a failure to accommodate claim in his FAC against
OCCJA.
A disability within the meaning of the ADA is required for both claims.
“Disability” under the ADA is defined as “(A) a physical or mental impairment that

substantially limits one or more major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an impairment . . . .” 42 U.S.C.
§ 12102(1). Barlean, however, attaches to the FAC an incomplete sleep study conducted
in 1999 [Doc. No. 8-6], which references only an initial phase of the study and does not
provide a definitive diagnosis of severe obstructive sleep apnea. Thus, he fails to plead

sufficient facts to state a disability within the meaning of the ADA for either claim.12
Different than his failure to accommodate claim, to recover on his discrimination
claim, Barlean must also allege that OCCJA acted with discriminatory ill will against him
because of his disability. See Aubrey, 975 F.3d at 1014 (citing Lincoln, 900 F.3d at 1204).
In the absence of direct evidence of OCCJA’s discriminatory intent, the Court applies the

McDonnell Douglas burden-shifting framework as noted above. See id. Barlean makes a

12 The Court notes that even the additional materials Barlean attaches to his
Response do not indicate a 2021 prescription for a CPAP machine. Regardless, Barlean
cannot amend his FAC through his Response, and the Court confines its analysis to the
FAC.
conclusory allegation that without a CPAP machine, he was “unable to participate in
other OCDC programs or activities like the non-disabled inmates due to excessive
fatigue.” FAC ¶ 77. Yet, he does not identify what, if any, programs he was unable to

participate in that other inmates were allowed to participate in, nor does he allege that
other inmates were being allowed to use CPAP machines. In fact, he alleges the
opposite.13 In summary, Barlean provides no plausible allegations that he was
discriminated against by OCCJA because of his medical condition or disability. Rather,
according to his allegations, he was treated just like every other inmate.14

OCCJA does not specifically address Mr. Barlean’s RA claim, which is also
included in Count 1. With very few exceptions, none of which are relevant here, courts
evaluate RA claims identically to those brought under the ADA. See Cline v. Clinical
Perfusion Sys., Inc., 92 F.4th 926, 931 (10th Cir. 2024); Crane v. Utah Dep’t of Corr., 15

13 See, e.g., FAC ¶¶ 51, 223 (Barlean allegedly asked for a CPAP machine, but he
was told that none were provided to inmates); id. ¶¶ 60, 226 (alleges he asked Dr.
Winchester, but that he allegedly responded that “there were no CPAPs for inmates”); id.
¶ 71 (alleges that inmates in the maximum-security gang pod were not allowed CPAPs);
id. ¶ 83 (alleges that he and other inmates with severe sleep apnea were not provided
CPAPs during his incarceration in June 2021); id. ¶¶ 84–85 (alleges that current and
future inmates are denied access to CPAPs under Turn Key’s current contract with
OCCJA).

14 Mr. Barlean’s allegations may fall squarely within the scope of a Fourteenth
Amendment inadequate medical care claim, rather than under the ADA or RA. See, e.g.,
Henard v. Albers, Civil Action No. 21-cv-3123-WJM-MDB, 2024 WL 1858501, at *3
(D. Colo. Apr. 29, 2024) (noting that “purely medical decisions” do not typically fall
within the scope of the ADA or the RA) (citing Fitzgerald v. Corr. Corp. of Am., 403
F.3d 1134, 1144 (10th Cir. 2005)). Count 14 of the FAC, which is addressed below,
already encompasses a Fourteenth Amendment inadequate medical care claim against
OCCJA, Turn Key, and Dr. Winchester.
F.4th 1296, 1302 n.4 (10th Cir. 2021). Thus, Mr. Barlean fails to state a RA claim for the
same reasons he fails to state an ADA discrimination or failure to accommodate claim,
and the Court dismisses without prejudice Count 1 as to OCCJA.

B. The Court dismisses without prejudice Count 2 as to OCCJA for failure to
state a claim.

In Count 2, Barlean seeks “declaratory/injunctive relief enjoining performance of
[an] unconstitutional contract between [OCCJA] and Turn Key in violation of the Eighth
and Fourteenth Amendments.” FAC at 16. OCCJA asserts that Barlean fails to allege a
plausible claim because the contract does not prohibit Turn Key from obtaining medical
devices and submitting the bill to OCCJA or asking an OCCJA purchasing officer to
obtain such devices. Motion at 15. OCCJA also asserts that Barlean makes the
“inferential leap” that a CPAP machine is a “prosthetic device” as the term is used in the
contract. See id. Additionally, OCCJA asserts that Barlean lacks standing to seek
injunctive relief because he is not a beneficiary or party to the contract, and his request is
moot because he is no longer an inmate at OCDC. See id. at 16.
In response, Barlean “withdraws his request for a declaratory judgment and for

nominal damages” in Count 2, but he asserts that he has Article III standing to seek
monetary damages and injunctive relief because he is serving a three-year deferred
sentence with supervised probation and faces the possibility of going back to the OCDC
if he were to violate the terms of his deferred sentence. Response at 13. He does not
assert anything in response to OCCJA’s other two arguments.
As the Court understands it, Barlean’s claim in Count 2 is that the agreement for
comprehensive health services [Doc. No. 8-7] between Turn Key and OCCJA violates
Barlean’s Eighth and Fourteenth Amendment rights to adequate medical care and his

rights under the ADA because the contract allegedly denies “the procurement of
breathing prosthetic devices (CPAPs) for inmates with severe obstructive sleep apnea.”
FAC ¶ 92A. Barlean references the clause in the agreement that states that the
“Contractor [i.e., Turn Key] shall not be responsible for the provision of eyeglasses,
contact lenses, hearing aids, hearing aid supplies, or any other prosthetic devices.” [Doc.

No. 8-7 at 5]; FAC ¶ 87. “Prosthetic devices” are not defined under the agreement.
Where, as here, the original complaint has been superseded by the FAC, the Court
examines the FAC in assessing Mr. Barlean’s claims, “including the allegations in
support of standing.” S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir.
2013) (quoting Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007)). “Nevertheless,

standing is determined at the time the action is brought,” thus, the Court will “generally
look to when the complaint was first filed, not to subsequent events to determine if a
plaintiff has standing.” Id. at 1153 (internal quotation marks and citation omitted). Mr.
Barlean filed his original complaint on June 5, 2023. [Doc. No. 1]. He asserts in his
Response that the State’s Application to Accelerate his Deferred Sentence [Doc. No. 34-

6] filed on June 16, 2023, presents a real risk that he will likely end up in the OCDC
again sometime in the future.15

15 Taking judicial notice of the docket report on the Oklahoma State Courts
Network, available at http://www.oscn.net, in Oklahoma County Case No. CM-2022-
“A ‘plaintiff cannot maintain a declaratory or injunctive action unless he or she
can demonstrate a good chance of being likewise injured in the future.’” Barney v.
Pulsipher, 143 F.3d 1299, 1306 n.3 (10th Cir. 1998) (quoting Facio v. Jones, 929 F.2d

541, 544 (10th Cir. 1991)). Here, Mr. Barlean fails to demonstrate such in his FAC, and
the Court declines to speculate that Mr. Barlean will likely end up in the OCDC again
sometime in the future. See id.; see also Martin v. City of Okla. City, 180 F. Supp. 3d
978, 993–94 (W.D. Okla. 2016) (concluding the plaintiff had not identified or properly
presented any facts from which to find a credible threat that he would be prosecuted in

the future under the same city ordinance on which his declaratory judgment claim was
based; thus, he lacked standing). Barlean cannot amend his FAC through his Response,
and his allegations that the State is attempting to accelerate his deferred sentence are not
included in the FAC. Thus, Mr. Barlean lacks standing to assert declaratory and
injunctive relief for his claim in Count 2 against OCCJA. Nonetheless, he also appears to

seek monetary damages.
The Court applies the same standard to a pretrial detainee’s claim for deliberate
indifference to his serious medical needs under the Fourteenth Amendment as it does to a
prisoner’s claim for deliberate indifference under the Eighth Amendment. See Strain v.
Regalado, 977 F.3d 984, 989 (10th Cir. 2020). “To state a cognizable claim, [a plaintiff]

4468 (last visited Oct. 10, 2024), the Court notes that the State has filed and dismissed
applications to accelerate Mr. Barlean’s deferred sentence since the sentence was entered
on January 5, 2023. It appears that the most recent application to accelerate was filed on
August 14, 2024, and remains pending, and that Mr. Barlean has also filed a motion to
terminate his probation early. However, none of this is alleged in his FAC, and the Court
does not look to subsequent events to determine if Barlean has standing.
‘must allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.’” See id. (quoting McBride v. Deer, 240 F.3d 1287, 1289 (10th
Cir. 2001)). This standard includes an objective and a subjective component. Id. The

objective component is established if the alleged deprivation is “sufficiently serious to
constitute a deprivation of constitutional dimension.” See id. at 989–90 (internal
quotation marks and citation omitted). To that end, the “medical need is objectively
serious if it is one that has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize the necessity for a

doctor’s attention.” See id. at 990 (brackets and citation omitted). To satisfy the
subjective component, “a plaintiff must allege that [the defendant] possessed the requisite
intent, together with objectively indifferent conduct, to state a claim for deliberate
indifference.” See id. at 992 (emphasis omitted).
Where a plaintiff seeks to hold a local government entity liable under § 1983, he

must also show that a municipal policy or custom “was the ‘moving force’ behind the
injury alleged.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404
(1997); see FAC ¶ 5. Thus, it appears that Barlean is relying on the language in the
agreement as the policy or custom behind his alleged injury in Count 2. The agreement
simply states that “[t]he Contractor [i.e., Turn Key] shall not be responsible for the

provision of . . . prosthetic devices.” [Doc. No. 8-7 at 5]; see also FAC ¶ 87 (same). As
OCCJA points out, it says nothing about OCCJA’s responsibility as to prosthetic devices.
In other words, leaving aside whether a “prosthetic device” includes a CPAP machine,
Barlean’s allegations fail to show that the agreement was the “moving force” behind his
alleged injury. The agreement does not indicate that Turn Key was prohibited from
obtaining a CPAP machine and billing OCCJA for it, nor does it prohibit Turn Key from
asking an OCCJA purchasing officer to obtain one. At most, it relieves Turn Key of the

responsibility of procuring and paying for an undefined prosthetic device. It says nothing
of OCCJA’s obligations. Thus, the Court dismisses without prejudice Count 2 as to
OCCJA.
C. The Court dismisses without prejudice Count 13 as to OCCJA for failure to
state a claim.

Count 13 alleges a civil conspiracy under § 1983 to classify Barlean as an
“unaffiliated gang member,” to deny him a CPAP machine, and to “forc[e] him to
smuggle gold” into the OCDC. FAC ¶¶ 208–11.16 “A civil conspiracy claim requires a
plaintiff to plead: (1) a deprivation of constitutional rights; and (2) the elements of a
conspiracy.” Seymour v. Garfield Cnty., 580 F. Supp. 3d 1039, 1058 (D. Utah 2022)
(citing Snell v. Tunnell, 920 F.2d 673, 701 (10th Cir. 1990)). “The elements of a
conspiracy are: (1) ‘two or more persons acting in concert; and (2) an allegation of a
meeting of the minds, an agreement among the defendants, or a general conspiratorial

objective.’” Id. (quoting Brooks v. Gaenzle, 614 F.3d 1213, 1227–28 (10th Cir. 2010),
abrogated by Torres v. Madrid, 592 U.S. 306 (2021) (citations omitted) (numbering
added)). Here, Mr. Barlean fails to state a plausible claim because he fails to allege a
deprivation of constitutional rights by OCCJA.

16 While Count 13 does not expressly name OCCJA, it includes allegations that
appear directed at OCCJA. See FAC ¶ 216. Therefore, the Court addresses Count 13 as to
OCCJA.
Starting with his allegation that officers forced him to smuggle gold, he does not
allege what municipal policy or custom was the “moving force” behind his alleged injury.
Presumably, the OCDC or OCCJA would have a policy outlining the procedure to be

used when admitting inmates to include procedures on removal, inventory, and storage of
personal property. See, e.g., Okla. Admin. Code § 310:670-5-1(4) (2019) (stating that city
and county detention facilities “shall have written policies and procedures for the
reception, orientation and release of inmates” to include “[t]he types of personal property
inmates may retain in their possession during confinement”). Yet, Barlean identifies no

such policy, which is fatal to his municipal liability theory against OCCJA.
Barlean’s allegations of an “unaffiliated gang member” classification also fail to
state a constitutional deprivation by OCCJA. “The Fourteenth Amendment’s Due Process
Clause protects persons against deprivations of life, liberty, or property; and those who
seek to invoke its procedural protection must establish that one of these interests is at

stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005); see also Steffey v. Orman, 461
F.3d 1218, 1221 (10th Cir. 2006) (“A due process claim under the Fourteenth
Amendment can only be maintained where there exists a constitutionally cognizable
liberty or property interest with which the state has interfered.”). “Lawful imprisonment
necessarily makes unavailable many rights and privileges of the ordinary citizen, a

‘retraction justified by the considerations underlying our penal system.’” Wolff v.
McDonnell, 418 U.S. 539, 555 (1974) (citation omitted). The Supreme Court has
established that a protected liberty interest is at issue in a prison setting only when an
inmate is subjected to (1) conditions that “impose[] atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life” or (2) actions that
“inevitably affect the duration of his sentence.” Sandin v. Conner, 515 U.S. 472, 484, 487
(1995). “[T]he government may subject those awaiting trial to the conditions and

restrictions of incarceration so long as those conditions and restrictions do not amount to
punishment.” Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1106 (10th Cir. 2005). No
process is required if a pretrial detainee is placed in segregation for a managerial purpose.
See id.
Here, Barlean does not allege adverse consequences beyond the general

constraints of pretrial detention or how his alleged placement or segregation caused
significant hardship or affected his sentence. His allegation is that he was transferred to
“the Maximum-Security Gang Pod” after becoming involved in a physical altercation
with his cellmate. See FAC ¶¶ 52–54. The Tenth Circuit has held, however, “that there is
no constitutionally protected liberty interest in a prison classification.” Bey v. Simmons,

69 F. App’x 931, 932 (10th Cir. 2003) (unpublished) (citing Templeman v. Gunter, 16
F.3d 367, 369 (10th Cir. 1994)). Additionally, the United States Supreme Court has “held
that the Constitution itself does not give rise to a liberty interest in avoiding transfer to
more adverse conditions of confinement.” Wilkinson, 545 U.S. at 221. It appears that
Barlean’s primary concern is that the classification change was retaliation by Defendants

Jordache Roe and Solis and other officers. See FAC ¶¶ 207, 210. But Barlean does not
allege that the officers’ retaliation was for any constitutionally protected activity.
“Without a constitutional violation, [Barlean] has suffered no injury for which a
municipality can be liable.” Frey v. Town of Jackson, 41 F.4th 1223, 1239 (10th Cir.
2022).
That brings the Court to Barlean’s civil conspiracy claim related to the denial of a

CPAP machine. Regardless of whether this is analyzed under a conditions-of-
confinement claim17 or a deliberate-indifference-to-medical-care claim under the
Fourteenth Amendment, Barlean does not allege a plausible constitutional violation. He
asserts, at most, a delay in medical treatment not resulting in substantial harm. See
McCowan v. Morales, 945 F.3d 1276, 1291 (10th Cir. 2019) (“A delay in medical care

only constitutes an Eighth Amendment violation where the plaintiff can show that the
delay resulted in substantial harm. The substantial harm requirement may be satisfied by
lifelong handicap, permanent loss, or considerable pain.”) (brackets and citation omitted).
Here, Barlean alleges, based on a 1999 incomplete sleep study, that he suffers
from severe obstructive sleep apnea that requires him to use a CPAP machine to avoid a

stroke. He alleges that he awoke in the OCDC “gasping for breath” and that he believed
he was experiencing a stroke. FAC ¶ 222. After calling for medical assistance, he was
seen by a nurse in the infirmary. Id. He alleges that the nurse made an appointment for
him to see the medical director, and he admits that he was thereafter evaluated by Dr.
Winchester. Id. ¶¶ 223, 227. Additionally, Barlean alleges that Dr. Winchester indicated

in his notes that if Barlean was not released the following week, he would contact the VA

17 “Conditions-of-confinement claims have two prongs: (1) an objective prong,
under which the alleged injury must be sufficiently serious, and (2) a subjective prong,
under which the prison official who imposed the condition must have done so with
deliberate indifference.” Redmond v. Crowther, 882 F.3d 927, 936 n.3 (10th Cir. 2018).
to request a CPAP prescription. Id. ¶ 61; see also [Doc. No. 8-12 at 2]. This was on
Barlean’s seventh day of pretrial detention, and Barlean was released the following day.
See FAC at 10. Dr. Winchester’s notes also indicate that Barlean was “without

resp[iratory] distress,” but was suffering from “mild opiate withdrawal.” See [Doc. No. 8-
12 at 2].
In other words, according to Barlean’s allegations in his FAC, he was examined
by a physician upon presenting with his complaints, and the documents attached to the
FAC indicate Dr. Winchester had a plan in action and that Barlean was not suffering from

any serious harm. Barlean does not allege a lifelong handicap, permanent loss, or
considerable pain, and he was released before he could test Dr. Winchester’s intent of
obtaining a prescription for a CPAP. Thus, Mr. Barlean fails to state a plausible claim for
civil conspiracy under § 1983 as to OCCJA because he fails to allege a deprivation of
constitutional rights by OCCJA based on any of the three theories.

D. Mr. Barlean fails to state a cognizable claim for deliberate indifference to his
medical needs by OCCJA, and the Court dismisses without prejudice Count
14 as to OCCJA.

In Count 14, Barlean alleges a deprivation of his civil rights by deliberate
indifference under § 1983 against Defendants Turn Key, Dr. Winchester, and OCCJA,
essentially repeating the same allegations addressed above. Barlean, at most, alleges a
delay in medical treatment not resulting in substantial harm or “medical malpractice,”
neither of which are sufficient to state a claim for deliberate indifference. See, e.g.,
Estelle v. Gamble, 429 U.S. 97, 105–07 (1976) (explaining that a physician’s negligence
did not rise to the level of “unnecessary and wanton infliction of pain” required to state a
cognizable claim for deliberate indifference); Farmer v. Brennan, 511 U.S. 825, 835
(1994) (explaining that deliberate indifference requires “more than ordinary lack of due
care”).

Again, Barlean’s allegations indicate he was seen by a nurse in the infirmary and
then evaluated by the medical director, Dr. Winchester. Dr. Winchester’s notes indicate
that Mr. Barlean was not in any type of respiratory distress, but was experiencing mild
opiate withdrawal symptoms consistent with what Barlean had reported to the physician,
i.e., a dependence on Norco. See [Doc. No. 8-12 at 2]. Dr. Winchester’s reported plan

was to request a CPAP prescription from the VA if Barlean was not released that week.
See id. A difference of opinion in medical treatment, however, does not suffice to state a
cognizable claim for deliberate indifference. See, e.g., Callahan v. Poppell, 471 F.3d
1155, 1160 (10th Cir. 2006) (explaining that the Tenth Circuit has rejected such an
expansive view of the rights protected by the Eighth Amendment where the plaintiff’s

case boiled “down to a contention that he had a right to a particular course of treatment:
the use of a wheelchair”); Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976) (explaining
that a difference in opinion as to treatment or diagnosis between a prisoner and medical
staff alone could not give rise to a cause of action for deliberate indifference to serious
medical needs). Thus, Mr. Barlean fails to state a cognizable claim for deliberate

indifference by OCCJA, and the Court dismisses without prejudice Count 14 as to
OCCJA.18

18 To the extent that Mr. Barlean alleges that Dr. Winchester was a “gatekeeper” in
preventing him from receiving treatment, the Court also concludes that Barlean fails to
E. The Court dismisses without prejudice Count 17 as to OCCJA.
Finally, Count 17 alleges a § 1983 deprivation against OCCJA and Turn Key for
having an “unconstitutional government policy of not providing prescribed medical

prosthetic devices to inmates.” FAC at 52. This claim appears to closely mirror Count 2.
Barlean relies on the language at page 5 of the comprehensive health services agreement
between Turn Key and OCCJA as the policy or custom behind his alleged injury. See
[Doc. No. 8-7 at 5]; see also FAC ¶ 254. However, Barlean’s allegations fail to show that
the agreement was the “moving force” behind his alleged injury. The provision in the

agreement, at most, relieves Turn Key of the responsibility of procuring and paying for
prosthetic devices, which are not defined under the agreement. It says nothing of
OCCJA’s obligations. Additionally, Barlean, at most, alleges a delay in medical
treatment not resulting in substantial harm. See McCowan v. Morales, 945 F.3d 1276,
1291 (10th Cir. 2019) (explaining that “substantial harm” may include “lifelong

handicap, permanent loss, or considerable pain” (citation omitted)). Accordingly, the
Court dismisses without prejudice Count 17 as to OCCJA.

state a plausible claim for deliberate indifference under a gatekeeping theory. See FAC
¶ 228; see also Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1143 (10th Cir.
2023). The FAC does not allege “the functional equivalent of a complete denial of care”
by Dr. Winchester. Rather, Dr. Winchester examined Barlean and concluded he was not
in respiratory distress but was experiencing mild opiate withdrawal symptoms consistent
with Barlean’s report of a Norco dependency. Dr. Winchester made note of same in
Barlean’s file (presumably for other medical staff to see) and developed a plan of action,
i.e., to request a CPAP prescription from the VA if Barlean was not released that week.
See [Doc. No. 8-12 at 2]. Barlean was released the following day. This does not amount
to Dr. Winchester preventing Barlean from receiving treatment or denying him access to
someone capable of evaluating Barlean’s need for treatment. See Lucas, 58 F.4th at 1137.
IV. CONCLUSION
For these reasons, the Court GRANTS Defendant Oklahoma County Criminal
Justice Authority’s Motion to Dismiss Plaintiff Kelly J. Barlean’s Amended Complaint
[Doc. No. 12]. The Court dismisses without prejudice Counts 1, 2, 13, 14, and 17 as to
Oklahoma County Criminal Justice Authority. The Court also dismisses with prejudice
Count | to the extent it seeks to impose liability on Dr. Winchester.
IT IS SO ORDERED this 11th day of October 2024.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666147. Public record. Not legal advice.