# Whitten v. McCurtain County Jail Trust

> District Court, E.D. Oklahoma · June 13, 2025

URL: https://www.frixlaw.com/law-library/cases/11098961

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** June 13, 2025
- **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/11098961

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11098961. Public record. Not legal advice.