Whitten v. McCurtain County Jail Trust

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

MARION ALLEN WHITTEN, JR., )

)

Plaintiff, )

)

v. ) Case No. CIV-24-229-RAW-GLJ

)

MCCURTAIN COUNTY JAIL TRUST; )

LARRY HENDRIX, individually and in )

his official capacity; TRENT )

MITCHELL; JOE EBERT; and )

TYLER SIVARDS, individually, )

)

Defendants. )

REPORT AND RECOMMENDATION

This matter comes before the Court on motions for partial dismissal and/or total

dismissal by all remaining Defendants in this case. Plaintiff Marion Allen Whitten sues,

inter alia, former jailer Joe Ebert, alleging various Fourth and Fourteenth Amendment

violations pursuant to 42 U.S.C. § 1983, arising out of his incarceration at the McCurtain

County Jail in Idabel, Oklahoma. Ebert moves for partial dismissal of Plaintiff’s claims

against him. For the reasons set forth below, the undersigned Magistrate Judge

recommends that the Partial Motion to Dismiss and Brief in Support of Defendant Joe Ebert

[Docket No. 73] be GRANTED.

PROCEDURAL HISTORY & BACKGROUND

Plaintiff filed this case on July 5, 2024 [Docket Nos. 1-2], naming the McCurtain

County Jail Trust (“MCJT”); Larry Hendrix, in his individual capacity and in his official

capacity as McCurtain County Jail Administrator; Trent Mitchell, a jailer; Ebert; Tyler

Sivard, individually and in his official capacity; and James McMillen, jailer and Assistant

Jail Administrator. The Court referred this case to the undersigned Magistrate Judge for

all pretrial and discovery matters, pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72

[Docket No. 49]. Upon invitation by the Court, Plaintiff filed his First Amended Complaint

on March 5, 2025, which no longer named Tyler Sivard in his official capacity [Docket

No. 68]. Each remaining Defendant now moves for partial or full dismissal of the First

Amended Complaint [Docket Nos. 70-73].

In broad terms, Plaintiff alleges two separate instances in which force was used

against him at MCJT. Plaintiff alleges the first incident occurred on January 1, 2022, when

he and Ebert had an argument, at which time Ebert and Sivard escorted him out of his cell

and placed him in a restraint chair. Docket No. 68, pp. 13-14, ¶¶ 79-83. Plaintiff asserts

that, immediately after he was placed in the restraint chair, Ebert “unnecessarily and

without provocation began to beat Plaintiff about the head and body striking him several

times,” such as to constitute excessive force. Id., ¶¶ 83, 85-89. He alleges Sivard was

present but did nothing to intervene and did not report it. Id., ¶¶ 84-85, 89, 92. Four days

later, Ebert failed to report to work, which was sufficient to consider him terminated. Id.,

p. 15, ¶¶ 99, 102. Plaintiff alleges he attempted to file grievances, but that they were

destroyed or misplaced, but that McMillen interviewed him on January 24, 2022, regarding

the incident and the unanswered grievances. Id., ¶¶ 100-101.

The second incident occurred in April 2022, after Plaintiff “attempted to gain the

attention of jailers by tapping the isolation cell camera,” in order to ask about his previous

grievances. Id., p. 20, ¶ 127-127. Plaintiff alleges that, in response, Mitchell assaulted him

with the JPX 4 Jet Defender pepper ball gun and again locked him in the isolation cell,

making him wait thirty minutes before allowing him to shower and “humiliating him while

laughing aloud.” Id., ¶ 129-130. In the immediately following paragraphs, Plaintiff refers

to the actions of Mitchell, as well as Ebert and Sivard (despite there being no allegation

Ebert or Sivard was present for the April 2022 incident). Id., ¶¶ 131-138.

Plaintiff alleges seven causes of action in his First Amended Complaint: (I) § 1983

claim for a Fourth Amendment violation by use of excessive force, as to Ebert and

Mitchell; (II) § 1983 claim for a Fourth Amendment violation by failing to intervene to

prevent or stop the use of excessive force, as to Ebert, Mitchell, and Sivard; (III) § 1983

of failing to adequately train, supervise, and/or control, as to Hendrix in his official capacity

and MCJT; (IV) § 1983 claim for a Fourteenth Amendment violation by deliberate

indifference to serious medical needs of a pretrial detainee, as to Hendrix, Mitchell,

McMillen, Ebert, and Sivard; (V) § 1983 claim for a Fourteenth Amendment violation by

deliberate indifference to health and safety of a pretrial detainee, as to Hendrix, Mitchell,

McMillen, Ebert, and Sivard; (VI) § 1983 claim for a Fourteenth Amendment violation by

use of excessive force against a pretrial detainee, as to Hendrix, Mitchell, McMillen, Ebert,

and Sivard; and (VII) § 1983 municipal liability claim under Monell1 as to MCJT.

Plaintiff’s causes of action do not distinguish between the January 2022 and April 2022

incidents. In total, Plaintiff names Ebert in fives claims. All parties, including Ebert, move

1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

to dismiss some or all of the claims against them. After responsive briefing on the motions

wherein Plaintiff agreed McMillen should be dismissed, Plaintiff filed a Joint Stipulation

of dismissal, dismissing the claims against McMillen with prejudice [Docket Nos. 72, 78-

79]. Ebert’s motion is now fully ripe.

Legal Standards

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’ 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) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555-557, 570 (2007)). Detailed factual allegations are

not required, but the statement of the claim under Rule 8(a)(2) must be “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555 (2007)); see generally Fed. R. Civ. P. 8(a)(2) (complaint

must contain “a short and plain statement of the claim showing that the pleader is entitled

to relief[.]”).

“While the 12(b)(6) standard does not require that Plaintiff establish a prima facie

case in h[is] 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). Thus, the appropriate inquiry is “‘whether the complaint

sufficiently alleges facts supporting all the elements necessary to establish an entitlement

to relief under the legal theory proposed.’” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir.

2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)). “A

pleading that offers labels and conclusions or a formulaic recitation of the elements of a

cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s]

devoid of further factual enhancement[.]” Iqbal, 556 U.S. at 678.

ANALYSIS

Ebert contends Plaintiff fails to state a claim against him as to Count IV, denial of

medical care in violation of the Fourteenth Amendment. Additionally, Ebert contends

Plaintiff insufficiently pleads that he: (i) failed to intervene as alleged in Count II, as to

both the January and April 2022 incidents; (ii) acted with deliberate indifference to

Plaintiff’s health and safety during the April 2022 incident, as alleged in Count V; and

(iii) engaged in the excessive use of force as to the April 2022 incident, as alleged in Counts

I and VI. In response, Plaintiff alleges he sufficiently pleaded a deliberate indifference

claim pursuant to Count IV, but asserts the remaining three arguments should be denied as

moot because he did not allege such claims and the Complaint makes clear that Ebert was

not even employed at the McCurtain County Jail in April 2022. The undersigned

Magistrate Judge notes, however, that Plaintiff’s First Amended Complaint names Ebert in

each of these claims, without clarifying a date for the which the allegations apply.2 While

the First Amended Complaint fails to clarify that the allegations in Count IV against Ebert

only apply to the January 2022 incident, the Complaint also states that Ebert was no longer

employed by MCJT after January 2022. See Docket No. 68, p. 15, ¶¶ 99, 102. Because

2 See Docket No. 68, pp. 23-24, ¶¶ 152-164; p. 25, ¶¶ 165-169; pp. 33-34, ¶¶ 195-203, pp. 35-36,

¶¶ 204-208.

Plaintiff now concedes the claims related to April 2022 should be dismissed as to Ebert,

the undersigned Magistrate Judge RECOMMENDS that Defendant Ebert’s motion be

GRANTED as to Counts I, II, IV, V, and VI, with regard to the April 2022 incident.

Additionally, the undersigned Magistrate Judge RECOMMENDS that Count II be

dismissed with regard to the January 2022 incident, given Defendant’s accurate contention

that it is illogical for Ebert to intervene or stop his own alleged use of force during that

incident and Plaintiff’s failure to object. Ebert does not move to dismiss Count I (Fourth

Amendment excessive force) as to the January 2022 incident, Count V (Fourteenth

Amendment deliberate indifference to health and safety of a pretrial detainee) as to the

January 2022 incident, or Count VI (Fourteenth Amendment excessive force) as to the

January 2022 incident. The sole remaining substantive cause of action to be addressed as

to Ebert is therefore Count IV, deliberate indifference to a pretrial detainee’s serious

medical needs.

Count IV, Deliberate Indifference to Serious Medical Needs, in Violation of the

Fourteenth Amendment. As to the January 2022 incident, Ebert contends Plaintiff’s First

Amended Complaint fails to allege what injuries he suffered during and following the

incident, or even that he required medical attention. Ebert correctly asserts Plaintiff only

generically asserts injuries as to both the January and April incidents, without

distinguishing injuries between the two. Additionally, Ebert argues that Plaintiff does not

allege damage from any failure to obtain medical treatment. Based on these failures, Ebert

contends he is entitled to qualified immunity on this claim. Plaintiff responds that he

sufficiently pleaded that Ebert delivered the beating to Plaintiff that necessitated medical

care, and that Ebert denied such care.

Federal Rule of Civil Procedure 8(a) requires Plaintiff to state his claims

“intelligibly” to give fair notice of the claims to opposing parties and the Court. Mann v.

Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007); Monument Builders of Greater Kansas

City, Inc., v. American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989).

Imprecise pleadings undermine the utility of the complaint and violate that purpose of Rule

8. See Knox v. First Security Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952).

Additionally, while often stated in the context of a § 1983 claim, individual defendants are

not to be lumped together as a group, but should be treated as individuals, each with the

Plaintiff’s own claims against each individual defendant, based on each individual

defendant’s own behavior. See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013)

(because § 1983 is a “vehicle[] for imposing personal liability on government officials, we

have stressed the need for careful attention to particulars, especially in lawsuits involving

multiple defendants”); Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242,

1250 (10th Cir. 2008) (stating complaint must “make clear exactly who is alleged to have

done what to whom, to provide each individual with fair notice as to the basis of the claims

against him . . . as distinguished from collective allegations”) (citing Twombly, 550 U.S. at

565 n.10); Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532-533 (10th Cir. 1998)

(holding district court’s analysis of plaintiff's § 1983 claims was “infirm” where district

court “lump[ed]” together plaintiff's claims against multiple defendants – “despite the fact

that each of the defendants had different powers and duties and took different actions with

respect to [plaintiff]” – and “wholly failed to identify specific actions taken by particular

defendants that could form the basis of [a] claim”). See also Goff v. Hukill, 2010 WL

2595785, at *7 (N.D. Okla. June 24, 2010) (noting the absence of any allegations regarding

each defendants’ conduct).

“To state a cognizable claim, Plaintiff must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs.” Strain v. Regalado,

977 F.3d 984, 989 (10th Cir. 2020) (quotation omitted). “[D]eliberate indifference to a

pretrial detainee’s serious medical needs includes both an objective and a subjective

component[.]” Id.; see also Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir. 1985)

(“[P]retrial detainees are in any event entitled to the degree of protection against denial of

medical attention which applies to convicted inmates. Thus [under the Fourteenth

Amendment] it is proper to apply a due process standard which protects pretrial detainees

against deliberate indifference to their serious medical needs.”).

To establish the objective component, “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) (quoting Farmer v.

Brennan, 511 U.S. 825, 834 (1994)). “A 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.” Clark[ v. Colbert, 895 F.3d

1258, 1267 (10th Cir. 2018)] (alteration in original and citation omitted). The

subjective component requires Plaintiff to establish that a medical “official

knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and [s]he must also draw the

inference.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (alteration in

original) (quoting Farmer, 511 U.S. at 837).

Strain, 977 F.3d at 989-990.

Plaintiff alleges in his First Amended Complaint in Count IV that “MCJT, Hendrix,

Mitchell, McMillen, Ebert, and Sivard had an obligation to meet [his] objective medical

needs in a timely fashion[,]” and that “Hendrix, Mitchell, McMillen, Ebert, and Sivard . . .

knew that delays in treating [his] serious medical needs, and/or the denial of any such

treatment, would likely expose [him] to a substantial risk of serious harm.” Docket No.

68, pp. 28, 30, ¶¶ 182, 184. He alleges “Hendrix, Mitchell, McMillen, Ebert, and Sivard”

were aware of Ebert’s assault and Mitchell’s assault, and of his “obvious, severe injuries,

his outward display of extreme pain, and his repeated requests for medical attention, which

Hendrix, Mitchell, McMillen, Ebert, and Sivard, and the other jail personnel ignored.” Id.,

p. 30, ¶ 185(a)-(c). He continues, stating that “the above-named Defendants” “[i]gnored

the fact that at least four of the conditions that [he] was clearly exhibiting (i.e., severe

bleeding, unconsciousness, head injury, and severe pain)—all of which the above-named

Defendants observed or about which they were otherwise aware—each qualified as an

‘emergency’ medical condition under MCJ’s written policies.” Id., p. 31, ¶ 189(c). As part

of Count VI (excessive force against a pretrial detainee), Plaintiff references the excessive

force used against him, again without distinguishing between the two incidents, and alleges

that excessive force “was a direct and proximate cause of [his] unnecessary physical pain,

his emergent physical injuries, the worsening of his condition, the severe emotional distress

and mental anguish he suffered, and the hospital, surgical, and other medical expenses he

incurred.” Id., p. 36, ¶ 208.

To satisfy the objective component, “[t]he plaintiff selects ‘what harm to claim.’”

Paugh v. Uintah Cnty., 47 F.4th 1139, 1155 (10th Cir. 2022) (quoting Mata, 427 F.3d at

753). The harm in Count IV as to Ebert is unidentified on the face of the First Amended

Complaint. Rather than specify the specific harm caused by Ebert during the January 2022

incident, Plaintiff recites a list of generic conditions3 using the prefix “i.e.,” then states “all

of which the above-named Defendants observed or about which they were otherwise

aware.” Docket No. 68, p. 31, ¶ 189(c). This assertion of injury, without specifying the

event and the injury (or injuries) attributable to each event, wholly fails to identify the harm

Ebert is alleged to have committed during the January 2022 event. See Robbins, 519 F.3d

at 1250 (Complaint must “make clear exactly who is alleged to have done what to whom,

to provide each individual with fair notice as to the basis of the claims against him . . . as

distinguished from collective allegations”) (citing Twombly, 550 U.S. at 565 n.10).

Plaintiff therefore fails to satisfy the objective component.

Because Plaintiff fails to identify the harm, he likewise fails to satisfy the subjective

component. Because Plaintiff has not identified a harm, he does not and cannot identify

what other treatment Ebert should have provided or how such treatment may have provided

3 Ebert asserts in his Reply that even this recitation of injuries is an admitted scrivener’s error on

the part of Plaintiff, and a direct result of copying and pasting from a different case with the same

Plaintiff’s counsel. See Eastern District of Oklahoma Case No. 22-187-RAW-DES, Harris v.

McCurtain County Jail Trust, Docket No. 41, p. 30, ¶ 149(c) (“Ignored the fact that at least four

of the conditions that Harris was clearly exhibiting (i.e., severe bleeding, unconsciousness, head

injury, and severe pain) -- all of which the above-named Defendants observed or about which they

were otherwise aware – each qualified as an “emergency” medical condition under MCJ’s written

policies[.]”). Because the claim fails for specificity given the two wholly separate incidents during

which different jailers were present, the undersigned Magistrate Judge declines to address this

issue. While the undersigned Magistrate Judge may take notice of other publicly-available court

records, see St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th

Cir. 1979) (“[A] court may . . . take judicial notice, whether requested or not []of its own records

and files, and facts which are part of its public records.”), consideration of Ebert’s assertion that

Plaintiff’s counsel admitted to this scrivener’s error would convert this motion to one for summary

judgment. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (“If a district court intends

to rely on other evidence, it must convert the Rule 12(b)(6) motion to a motion for summary

judgment, giving proper notice to the parties.”).

a better outcome, see Strain, 977 F.3d at 994 (“Plaintiff failed to allege what other treatment

Defendants should have provided or how transferring Mr. Pratt to a hospital would have

produced a better outcome.”), or “how the complaint alleges [Ebert’s] subjective awareness

of [unidentified and unspecified] serious medical needs.” Id. at 995. Accordingly, the

undersigned Magistrate Judge finds Plaintiff fails to state a claim against Ebert in Count

IV as to the January 2022 incident, and recommends that Plaintiff’s Count IV as to Ebert

be dismissed and that Ebert be granted qualified immunity.

Leave to Amend. Plaintiff requests in his Response that, in the event dismissal is

granted, he be given leave to amend his Complaint yet again. Plaintiff first moved to amend

the original Complaint on December 31, 2024, following the filing of multiple Motions to

Dismiss the original Complaint [Docket Nos. 36, 40-43]. The parties opposed the motion,

and the undersigned Magistrate Judge denied the motion without prejudice due to

Plaintiff’s failure to comply with this Court’s Loc. Civ. R. 7.1(k) (requiring the motion to

amend “be accompanied by a proposed order submitted pursuant to the ECF Policy Manual

which specifically sets forth what is being amended[,]” and attaching “a copy of the signed,

proposed amended pleading.”). Upon Plaintiff’s failure to renew his motion to amend after

the original Motions to Dismiss were fully briefed, the undersigned Magistrate Judge

nevertheless invited Plaintiff to file an Amended Complaint. Plaintiff attempted to do so

on March 4, 2024, but said Amended Complaint was stricken for failure to comply with

this Court’s instruction to include “[a] redline version of the original complaint

(“Complaint”) as amended” [Docket Nos. 66-67]. Plaintiff submitted a proper First

Amended Complaint as directed by the Court on March 5, 2025 [Docket No. 68]. The

undersigned Magistrate Judge finds that Plaintiff’s repeated failure to cure deficiencies by

amendments previously allowed adheres in favor of denying any additional opportunities

to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend may be denied

for, inter alia, “repeated failure to cure deficiencies by amendments previously

allowed[.]”).

CONCLUSION

Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that

Partial Motion to Dismiss and Brief in Support of Defendant Joe Ebert [Docket No. 73] be

GRANTED. In the event this Report and Recommendation is adopted in whole, the

remaining claims and dismissed claims, as to Defendant Joe Ebert, would be set forth as

follows:

Remaining Claims:

Count I (Excessive Force): As to the January 2022 incident only;

Count V (Deliberate Indifference to Health and Safety of Pretrial Detainee): As to

the January 2022 incident only; and

Count VI (Excessive Force, Fourteenth Amendment): As to the January 2022

incident only.

Dismissed Claims:

Count I (Excessive Force, Fourth Amendment): As to the April 2022 incident only;

Count II (Failure to Intervene): All claims against Ebert;

Count IV (Deliberate Indifference to Serious Medical Needs): All claims against

Ebert.

Count V (Deliberate Indifference to Health and Safety of Pretrial Detainee): As to

the April 2022 incident only; and

Count VI (Excessive Force, Fourteenth Amendment): As to the April 2022 incident

only.

Claims not applicable to Ebert:

Count III (Failure to Train, supervise, and/or Control)

Count VII (municipal liability).

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.

DATED this 13th day of June, 2025.

_____________________________________

GERALD L. JACKSON

UNITED STATES MAGISTRATE JUDGE