# Baggs-Fry v. McCurtain County Board of County Commissioners

> District Court, E.D. Oklahoma · April 2, 2025

URL: https://www.frixlaw.com/law-library/cases/10920418

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** April 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FOR THE EASTERN DISTRICT OF OKLAHOMA

CHERYL BAGGS-FRY, an individual, )
)
Plaintiff, )
)
vs. )
)
BOARD OF COUNTY )
COMMISSIONERS OF MCCURTAIN )
COUNTY; MCCURTAIN COUNTYY )
ex rel. MCCURTAIN COUNTY )
SHERIFF’S OFFICE; KEVIN )
CLARDY, individually and in his )
official capacity; KYLER CLARDY, )
individually and in his official capacity; )
and BRUCE SHIREY, in his official )
capacity as McCurtain County Sheriff, )
Case No. CIV-24-328-JFH-SPS
)

Defendants, )

)
and )
)
KEVIN CLARDY, individually, )
and KYLER CLARDY, )
individually, )
)
Counter Claimants, )
)
vs. )
)
CHERYL BAGGS-FRY, an )
individual, )
)
Counter Defendant. )

REPORT AND RECOMMENDATIOIN

Before the Court is Defendant Board of County Commissioners of McCurtain County, and
McCurtain County ex rel. McCurtain County Sheriff’s Office’s Motion to Dismiss and Brief in
Support (“Motion to Dismiss”) [Docket No. 14]. Plaintiff, Cheryl Baggs-Fry, an individual,
brought this civil rights action pursuant to 41 U.S.C § 1983. The Court referred this case to the
to 28 U.S.C. § 636 [Docket No. 24]. Defendants, Board of County Commissioners of McCurtain
County, Oklahoma, and McCurtain County ex rel. McCurtain County Sheriff’s Office now move
this Court to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the reasons stated below, the undersigned Magistrate Judge recommends that the Motion to
Dismiss be [Docket No. 14] GRANTED.
BACKGROUND
Plaintiff filed her Petition in the District Court of McCurtain County, Oklahoma on July 9,

2024, against the Board of County Commissioners of McCurtain County, Oklahoma (“McCurtain
BOCC”), McCurtain County ex rel. McCurtain County Sheriff’s Office (“McCurtain MCSO”),
Kevin Clardy, individually and in his official capacity as McCurtain County Sheriff, and Kyler
Clardy, individually and in his official capacity. See Docket No. 2-2. Plaintiff alleges several
causes of action pursuant to 42 U.S.C. section 1983, and claims for false imprisonment, false arrest,
malicious prosecution, libel, slander, and negligence under the Oklahoma Governmental Tort
Claims Act, all of which stem from her alleged wrongful arrest on July 14, 2023. Id. Plaintiff, a
process server, was attempting to serve Sheriff Kevin Clardy. She alleges that, after several
unsuccessful attempts, she approached Kevin Clardy’s house, where a law enforcement vehicle
was parked in the driveway. Plaintiff claims she was cut off by Reserve Deputy Kyler Clardy and

that Kyler Clardy arrested her. Plaintiff alleges she was detained for approximately 60 to 90
minutes, then released. Id.
The case was removed to this Court on September 13, 2024 [Doc. 2]. On January 21, 2025,
a Motion to Substitute was filed [Doc. 43]. Fed. R. Civ. P. 25(d) requires that when a public officer
who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the
action is pending, the officer’s successor is automatically substituted as a party. Previously, Kevin
Clardy served as the Sheriff of McCurtain County and was named as a party to this action in his
current Sheriff of McCurtain County is Bruce Shirey. Therefore, by operation of Fed. R. Civ. P.
25(d), Sheriff Bruce Shirey automatically replaced Kevin Clardy as a named party to this suit, in
his official capacity as Sheriff of McCurtain County. Fed. R. Civ. P. 17(d) provides that “[a] public
officer who sues or is sued in an official capacity may be designated by official title rather than by
name, but the court may order that the officer's name be added.” The Motion to Substitute was
granted on February 6, 2025 [Doc. 44].
McCurtain BOCC and McCurtain MCSO now move to dismiss the claims against them

asserting that the claims are duplicative. See Docket No. 22. For the reasons set forth below, the
undersigned Magistrate Judge recommends that the claims against McCurtain BOCC and
McCurtain MCSO be dismissed.
ANALYSIS
“In considering a Rule 12(b)(6) motion, the court must accept all well-pleaded allegations
of the complaint as true and must construe them in the light most favorable to the plaintiff.”
Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).
“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.’” Schrock v. Wyeth, Inc., 727 F.3d 1272, 1280
(10th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2006)). “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). “While the 12(b)(6) standard does not require that Plaintiff establish a prima
facie case in [her] complaint, the elements of each alleged cause of action help to determine
whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012). This requires a determination as to “whether the complaint sufficiently alleges
facts supporting all the elements necessary to establish an entitlement to relief under the legal
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)).
I. MOTION TO DISMISS
Plaintiff’s Complaint asserts various causes of action under both federal and state law
against McCurtain BOCC, McCurtain MCSO, and McCurtain County Sheriff Kevin Clardy, in his
official capacity.1 Defendants contend, inter alia, that the claims against McCurtain BOCC, and
McCurtain MCSO should be dismissed as being entirely duplicative of the claims against Sheriff
Bruce Shirey, in his official capacity as Sheriff of McCurtain County. See Docket No. 14, p. 4.2

Plaintiff responds in opposition that McCurtain BOCC, and McCurtain MCSO are properly named
Defendants and, as such, should not be dismissed. Upon review of the relevant case law, the Court
agrees that Plaintiff’s claim against McCurtain BOCC, McCurtain MCSO and Sheriff Shirey in
his official capacity are duplicative, and that McCurtain BOCC, and McCurtain MCSO should be
dismissed as duplicative parties.
“[A] section 1983 suit against a municipality and a suit against a municipal official acting
in his or her official capacity are the same.” Stuart v. Jackson, 24 F. App’x 943, 956 (10th Cir.
2001) (quoting Myers v. Okla. Cnty. Bd. Of Cnty. Commr’s, 151 F.3d 1313, 1316 n.2 (10th Cir.
1998); Ky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits [are] . . . in all respects
other than name, to be treated as a suit against the entity. It is not a suit against the official

personally, for the real party in interest is the entity.”) (internal citations omitted). Moreover, under
19 Okla. Stat. § 4, as amended in 2019, “the correct means by which to name a county as a
defendant in an action involving § 1983 claims . . . is to name the appropriate county officer in his

1 As noted supra, the Court granted the Motion to Substitute Bruce Shirey, in his official capacity as
Sheriff of McCurtain County, Oklahoma on February 6, 2025 [Doc. 44].
2 Defendants also allege Plaintiff has failed to support various other claims asserted in her Complaint.
Considering the Court’s ruling, infra, that Plaintiff shall be granted leave to amend, the Court does not
address these arguments on the merits at this time.
*1 (W.D. Okla. 2021) (emphasis added); 19 Okla. Stat. § 4 (“Suit may be brought against a county
by naming a county officer . . . when it is alleged that such officer in his or her official capacity is
directly or vicariously liable to plaintiff in an action not arising out of contract.”).
Plaintiff requests that, to the extent her claims against McCurtain BOCC and McCurtain
MCSO are duplicative, the Court treat McCurtain BOCC and McCurtain MCSO as “one and the
same” defendant and permit the claims against both to proceed in this lawsuit. See Docket No. 20,
pp. 5-9. In support, Plaintiff cites an unpublished Order issued in this District Court in Lynch v.

Board of County Commissioners of Muscogee County, Oklahoma, 16-cv-247-JFP, Docket No. 60,
pp. 4-6 (E.D. Okla. March 31, 2017), where this Court denied a motion to dismiss Muskogee
BOCC upon finding the Board was properly named as a party. Importantly, this decision was
issued prior to the Oklahoma statutory amendment, and this issue is distinguishable from the issue
of whether McCurtain BOCC and McCurtain MCSO are duplicative parties.
Dismissal of the superfluous claims against McCurtain BOCC and McCurtain MCSO are
thus warranted here for the sake of judicial economy and efficiency. See Foreman v. Okla. Cnty.
Sheriff, *4-5, 2022 WL 2513384, *2 (W.D. Okla. July 6, 2022) (dismissing, without prejudice,
claims against Board of County Commissioners for Oklahoma County as duplicative); Hayes v.
Owen, 2023 WL 2716579, *6 (N.D. Okla. Mar. 30, 2023) (“The Court agrees with the Board that

plaintiffs’ claims against the Board are redundant with its claims against Sheriff Owen in his
official capacity.”). As a matter of judicial economy, the undersigned Magistrate Judge thus
recommends that the claims against McCurtain BOCC and McCurtain MCSO be dismissed
without prejudice.
II. LEAVE TO AMEND

Plaintiff requests leave to amend her Complaint in the event the defendants, McCurtain
BOCC and McCurtain MCSO are dismissed. Federal Rule of Civil Procedure 15(a)(2) provides
leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Accordingly, the Magistrate Judge recommends Plaintiff be granted leave to amend.3
CONCLUSION
Accordingly, the undersigned Magistrate Judge hereby recommends that Defendants’
Motion to Dismiss [Docket No. 14] be granted as set forth herein, and Plaintiff be granted leave to
amend. Any objections to this Report and Recommendation must be filed within fourteen days.
See 18 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). Any objections and response shall each be
limited to 10 pages and a reply is permitted only with leave of court upon a showing of good cause.

IT IS SO ORDERED this 2nd day of April, 2025.

________________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

3 Defendants Sheriff Kevin Clardy and Kyler Clardy have also filed a Motion to Dismiss [Doc.
21]. In Plaintiff’s Response to said motion, she has requested leave to amend her Complaint as
well [Doc. 28].

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10920418. Public record. Not legal advice.