GJA v. OKLAHOMA DEPT. OF HUMAN SERVICES

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GJA v. OKLAHOMA DEPT. OF HUMAN SERVICES

2015 OK CIV APP 32

347 P.3d 310

Case Number: 112885

Decided: 03/03/2015

Mandate Issued: 03/31/2015

DIVISION IV

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

Cite as: 2015 OK CIV APP 32, 347 P.3d 310

GJA, individually, and as Parent and Next Friend of JOHN DOE and

JANE DOE, minor children, and KA, an Individual,

Plaintiffs/Appellants,

v.

OKLAHOMA DEPARTMENT OF HUMAN SERVICES; JOHN DOES

1-30, unknown individuals employed by OKLAHOMA DEPARTMENT OF HUMAN SERVICES,

Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF

DELAWARE COUNTY,

OKLAHOMA

HONORABLE ROBERT G. HANEY, TRIAL JUDGE

AFFIRMED

J. Christopher Davis, Jon D. Cartledge, JOHNSON & JONES, P.C., Tulsa,

Oklahoma, and E. Anthony Mareshie, E. ANTHONY MARESHIE, PLLC, Tulsa, Oklahoma,

for Plaintiffs/Appellants

Richard W. Freeman, Jr., Joseph W. Strealy,

ASSISTANT GENERAL COUNSEL, DEPARTMENT OF HUMAN SERVICES, Oklahoma City,

Oklahoma, for Defendant/Appellee Oklahoma Department of Human Services

KEITH RAPP, PRESIDING JUDGE:

¶1 Plaintiffs, GJA (Father), individually, and as parent and next friend of

John Doe (Son) and Jane Doe (Daughter), minor children and KA (Step Mother),

individually, appeal an Order sustaining the motion to dismiss filed by

Defendant, Oklahoma Department of Human Services (DHS). 1 This appeal proceeds under the

accelerated appeal procedures of Okla. Sup. Ct. Rule 1.36, 12 O.S.2011, Ch. 15,

app. 2.

BACKGROUND

¶2 Plaintiffs alleged that Daughter and Son were abused while in their

mother's (Father's former spouse) custody. The allegations are that Daughter was

sexually abused and Son was abused by withholding needed medical treatment.

According to the petition, DHS was informed about the abuse of both children and

the agency and its employees did nothing. Moreover, Plaintiffs alleged that DHS

and its employees did not report the sexual abuse as required by law.

¶3 After complying with the preliminary claim and notice provisions of the

Governmental Tort Claims Act (GTCA), Plaintiffs sued. Plaintiffs asserted a

claim for damages based upon tort claims of negligence, negligence per se

and intentional infliction of emotional distress. They alleged a violation of

their constitutional rights. Plaintiffs also alleged a civil conspiracy.

¶4 DHS moved to dismiss for failure to state a claim. 12 O.S.2011, § 2012(B)(6). DHS

argued that it was immune from tort claims and that Bosh v. Cherokee County

Governmental Bldg. Auth. , 2013

OK 9, 305 P.3d 994, did not

create an actionable claim under the facts of this case. DHS also argued that

the petition did not state a claim for civil conspiracy. 2

¶5 The trial court sustained the motion to dismiss. The trial court ruled

that DHS was immune under the GTCA from tort liability. Next, the trial court

ruled that the alleged violations of constitutional rights were not actionable

under Bosh . Last, the trial court ruled that the petition did not state a

claim for civil conspiracy.

¶6 Plaintiffs' response to the motion to dismiss included a request to stay

the proceedings to allow discovery and pertinent amendments to the petition. The

journal entry does not directly rule on this request, but necessarily denied it.

Plaintiffs add, as trial court error, a failure to allow discovery before ruling

on the motion.

¶7 Plaintiffs appeal.

STANDARD OF REVIEW

¶8 A trial court's dismissal for failure to state a claim upon which relief

can be granted involves a de novo review to ascertain whether the

petition, including its exhibits, is legally sufficient. Darrow v. Integris

Health, Inc ., 2008 OK 1, ¶

7, 176 P.3d 1204, Indiana

Nat'l Bank v. State Dep't of Human Services , 1994 OK 98, ¶ 2, 880 P.2d 371, 375.

¶9 A pleading must not be dismissed for failure to state a claim unless the

allegations show beyond any doubt that the litigant can prove no set of facts

which would entitle him to relief. Indiana Nat'l Bank , 1994 OK 98 at ¶ 3, 880 P.2d at 375.

The trial court's task is to inquire whether relief is possible under any set of

facts that could be established consistent with the allegations. Generally, a

motion to dismiss may be sustained for two reasons: (1) lack of any cognizable

legal theory, or, (2) insufficient facts under a cognizable legal theory.

Indiana Nat'l Bank , 1994 OK 98 at ¶ 4, 880 P.2d at

375-76.

¶10 The appellate court will exercise its "plenary, independent, and

non-deferential authority [when] reexamin[ing] a trial court's legal rulings."

Neil Acquisition, L.L.C. v. Wingrod Inv. Corp. , 1996 OK 125, ¶ 4, 932 P.2d 1100, 1103 n.1; Spielmann

v. Hayes , 2000 OK CIV APP 44,

¶ 8, 3 P.3d 711, 713. This

Court's standard of review is de novo and gives no deference to the legal

rulings of the trial court. State ex rel. Dep't of Human Services ex rel.

Jones v. Baggett , 1999 OK 68,

990 P.2d 235.

ANALYSIS AND REVIEW

A. Sovereign Immunity

¶11 DHS asserted sovereign immunity for all tort claims alleged by

Plaintiffs. 3

The GTCA specifies the extent to which sovereign immunity has been waived. 51 O.S.2011, § 153(A) and (B). 4 In Smith v.

City of Stillwater , 2014 OK

42, ¶ 14, 328 P.3d 1192,

1198, the Court held:

The GTCA is the exclusive remedy by which an injured plaintiff may

recover against a governmental entity for its negligence. The GTCA adopts

the doctrine of sovereign immunity and provides that the State, its

political subdivisions, and all of their employees acting within the scope

of their employment, whether performing governmental or proprietary

functions, shall be immune from liability for torts. The GTCA waives the

immunity of the State and its political subdivisions, but only to the extent

and in the manner provided in the act. Title 51 O.S. §153 extends

governmental accountability to all torts for which a private person or

entity would be liable, subject only to the act's specific limitations and

exceptions. (Citations omitted.)

¶12 DHS relies upon two of the statute's exceptions: 51 O.S.2011, § 155(4) and (29). 5

1.Section 155(4)

¶13 DHS condensed and summarized Plaintiffs' allegations. DHS described the

petition as charging that DHS was guilty of negligence and negligence per

se "in breaching its common law and statutory duties to protect (Child

Plaintiffs) from sexual assault or abuse, physical abuse, emotional abuse and

other abuses."

¶14 Plaintiffs alleged that DHS, by its employees, knew or should have known

of the abuse of both children occurring or beginning in March and July of 2011.

Plaintiffs claimed that DHS was informed about the abuse of Son and took no

action. Plaintiffs further alleged that DHS was informed of the sexual abuse of

Daughter, stopped its investigation, and took no action, including not reporting

the sexual abuse claim to the police. 6

¶15 By statute, DHS is directed to respond to reports of child abuse and

conduct an investigation. 10A O.S.2011, § 1-2-105 (amended effective November 1,

2014). This statute describes the duties and authority of DHS in conducting its

investigation and requires a written report to the District Attorney.

¶16 DHS cited Skurnack v. State ex rel. Dep't of Human Services , 2002 OK CIV APP 37, 46 P.3d 198. In Skurnack ,

the Court held that DHS was immune under the previously numbered child abuse

investigation statute. The facts of that case are that DHS tried to investigate,

but the investigation was thwarted by the parents. DHS had to resort to

intervention in court by the District Attorney. Thus, the Court observed that

the record was clear that DHS was "attempting to enforce" the statute requiring

it to investigate or assess the referral of neglect. Consequently, the immunity

based upon "enforcement" of law shielded DHS from the liability claimed by

Skurnack .

¶17 Here, the allegations are different than the facts in Skurnack ,

where the "enforcement" exemption for immunity applied . The Plaintiffs

alleged that DHS did nothing regarding the abuse report involving Son and

virtually did nothing regarding the abuse report involving Daughter. 7 In other words,

Plaintiffs alleged that DHS failed to enforce the law.

¶18 Section 155(4) provides for immunity for "[a]doption or enforcement of

or failure to adopt or enforce a law , whether valid or invalid,

including, but not limited to, any statute, charter provision, ordinance,

resolution, rule, regulation or written policy." (Emphasis added.) Viewed in the

best light possible, Plaintiffs alleged that DHS failed to enforce the law. DHS

is thus immune from liability. See , Felkins v. Oklahoma Firefighters

Pension and Ret. Sys. , 2005 OK

CIV APP 39, ¶ 13, 116 P.3d

195, 198 (retirement system trustees immune based on alleged failure to

enforce law); and, Bordwine v. Oklahoma Firefighters Pension and Ret.

Sys. , 2004 OK CIV APP 75, ¶

11, 99 P.3d 703, 706-07 (failure

to credit military service as required by law).

¶19 Therefore, the trial court correctly ruled that the tort claims of

negligence, negligence per se and intentional infliction of emotional

distress must be dismissed because DHS has immunity under Section 155(4). The

damage claim for loss of consortium was also correctly dismissed, because it is

an item of damages for the dismissed torts

2.Section 155(29)

¶20 DHS merely stated that Section 155(29) affords immunity. Section

155(29) pertains to acts or omissions of an employee in the placement of

children. Here, according to the allegations, both children were living with

their mother at the time and in accordance with the Decree of Divorce. Thus, the

children were not "placed" by DHS employees. The Legislature could have, but did

not, include "removal of children" in this subdivision of the statute.

¶21 Moreover, a reasonable reading of the petition does not disclose any

claim based upon an act or omission in the placement of the children. Section

155(29) does not apply.

B. Constitutional Claim

¶22 Plaintiffs alleged that the actions and inactions of DHS employees, with

respect to the abuse claims, violated their constitutional rights to Due Process

of Law as guaranteed by the Oklahoma Constitution. Plaintiffs further alleged

that discovery might reveal additional violations of constitutional rights, but

none were specifically identified. Plaintiffs asserted that they have a cause of

action under the holding of Bosh v. Cherokee County Governmental Bldg.

Auth. , 2013 OK 9, 305 P.3d 994.

¶23 The Bosh Court held : (1) that section 30, article 2 of the

Oklahoma Constitution provides a private cause of action for excessive force

against an arrested and detained person, notwithstanding the immunities under

the GTCA; (2) respondeat superior applied; and (3) the action is

recognized retrospectively. 8 The facts were that Bosh was in custody and while

being booked, the jailers severely beat and injured him and denied him medical

attention for two days. His injures were severe and required surgery.

¶24 The Bosh Court reasoned :

The OGTCA cannot be construed as immunizing the state completely from all

liability for violations of the constitutional rights of its citizens. To do

so would not only fail to conform to established precedent which refused to

construe the OGTCA as providing blanket immunity, but would also render the

Constitutional protections afforded the citizens of this State as

ineffective, and a nullity. Therefore we answer the reformulated question

and hold that the Okla. Const. art 2, § 30 provides a private cause of

action for excessive force, notwithstanding the requirements and limitations

of the OGTCA.

Bosh , 2013 OK 9 at ¶

23, 305 P.3d at 1001.

¶25 The case before this Court now presents two lines of inquiry.

¶26 First: Should the Bosh case be limited to its facts and specific

holdings or does the decision stand for the proposition that the Supreme Court

recognizes a broader scope of actionable claims based upon violations of

constitutional rights? Second: If the latter interpretation be followed, does

that mean that Plaintiffs here have stated a claim? 9

¶27 The concept of precedent at least stands for the proposition that under

certain facts, a particular party should prevail on the relevant source of law.

Thus, the facts in Bosh involve an arrested person who is detained in

jail and subjected to excessive force and inhumane conditions of confinement,

all of which invoke Article 2, section 30 of the Oklahoma Constitution. Another

person, similarly treated, can invoke Bosh as authority for that person's

lawsuit. 10

¶28 Clearly, Plaintiffs' allegations do not involve the same or similar

circumstances. In a strict sense, the Bosh precedent, when thusly

limited, does not provide authority for Plaintiffs to state a claim. 11

¶29 However, such limitation fails to account for the Court's reasoning. Of

course, the Supreme Court has had the occasion to deem its prior statements as

"broader than the facts warrant." Stone v. Bonaparte , 1930 OK 563, ¶ 22, 297 P. 228, 232. On the other hand,

the Court has recognized that "precedents must often yield to the force of

reason and to paramount demands of justice as well as the decencies of civilized

society, and the law ought to speak with a voice responsive to these demands."

Oklahoma County v. Queen City Lodge No. 197, I.O.O.F. , 1945 OK 55, ¶ 20, 156 P.2d 340, 344-45.

¶30 A more in depth examination of Bosh is warranted in order to

ascertain what rule, standard, or principle the case was meant to stand for. In

that regard, the Supreme Court expressed its reasoning as set out above. In

addition, the Supreme Court reviewed authorities leading up to its decision and

placed its decision in historical perspective. Thus, the Opinion provides the

textual material that enables the reader of that Opinion to understand the

Court's intent. The result of such an examination discloses that the Court has

not only adjudicated a specific claim based upon a set of facts, but also the

Court made a statement of policy (upholding constitutional guarantees and

protections) as its broader holding. The Court then specifically applied that

broader policy statement holding to the facts of the case.

¶31 Therefore, in this Court's opinion, Bosh stands for the

proposition that the protections and guarantees afforded the citizens by the

Constitutions of the State of Oklahoma and of the United States represent the

highest values of the people. Violations of these rights and guarantees cannot

be shielded under the guise or cloak of immunity.

¶32 The first inquiry is answered. The Bosh case is not limited to its

facts and specific holding. It does stand for the proposition that the Supreme

Court recognizes a broader scope of actionable claims based upon violations of

constitutional rights.

¶33 The question remains, however, of whether Plaintiffs have stated such a

claim. Plaintiffs allege that the children's rights to Due Process of Law were

violated. Not every malfeasance, misfeasance, or nonfeasance rises to the level

of a violation of constitutional rights. 12 This Court observes that, in cases

like Bosh and cases involving convicted, incarcerated inmates, where a

claim has been found, the facts reveal an egregious and extreme set of

circumstances showing that the individual defendant(s) intentionally inflicted

physical harm on the plaintiff. 13

¶34 In cases such as here under review, the trial court has a role as

gatekeeper to determine whether a petitioner made a claim as a matter of law. In

Heck v. Humphrey , 512 U.S. 477, 487, 114 S. Ct. 2364, 2372-73 (1994), the

Court explained that the district court must make certain preliminary

determinations before a claim for damages for a constitutional violation could

proceed. Additional examples of a trial court's gatekeeper role include:

Courtney v. State , 2013 OK

64, ¶ 8, 307 P.3d 337, 341

(petition to determine innocence); Worsham v. Nix , 2006 OK 77, 145 P.3d 1055 (gatekeeper of the

evidentiary process); Miller v. Miller , 1998 OK 24, ¶ 34, 956 P.2d 887, 901 (determination

whether conduct may reasonably be regarded as sufficiently extreme and

outrageous).

¶35 Application of a court's gatekeeper role further serves to focus the

Bosh claims upon those acts or inactions which rise to the level of a

constitutional claim. This means that Bosh does not create a wide-ranging

tort claim. Moreover, the gatekeeper role will resolve cases such as Jackson

v. Oklahoma City Pub. Sch. without having to limit the interpretation of

Bosh . 14 Thus, the facts as recited in Jackson may

easily be judged as facts that do not give rise to a constitutional claim.

¶36 Here, this Court must consider whether the allegations sufficiently state

a claim of violation of constitutional rights. It does not appear that the trial

court did so opting instead to limit Bosh to its facts. Nevertheless, if

the trial court reached the correct judgment, although for incorrect reasons,

the judgment will not be reversed. Thompson v. Inman , 1971 OK 32, ¶ 30, 482 P.2d 927, 937.

¶37 According to the petition, the children were not in the custody of DHS so

as to implicate their clearly established constitutional right to be reasonably

safe from harm when placed in the state's custody. 15 The employees of DHS were not the

persons inflicting the alleged physical and emotional harm on the children. The

substance of the petition is that: (1) DHS and its employees had a duty imposed

by law to investigate child abuse reports; (2) DHS and its employees breached

that duty by either failing to investigate or negligently investigating the

child abuse reports; and, (3) as a direct result of the breaches of duty the

children sustained injury for which they are entitled to damages.

¶38 After examination using the "gate keeper" role, this Court concludes that

Plaintiffs' petition does not contain allegations of facts giving rise to

violations of constitutional rights to Due Process of Law. At most, the

allegations are claims of gross negligence in carrying out the investigations;

so Plaintiffs have not brought their claims into the Bosh cause of action

for violation of constitutional rights. Therefore, the trial court did not err

in dismissing the petition.

C. Additional Discovery

¶39 In their response to the motion to dismiss, Plaintiffs requested that the

ruling be stayed for additional discovery and corresponding amendment to the

petition. This is the equivalent of a request for additional time to respond.

Plaintiffs' request did not identify any areas for discovery or provide

authority for the request. The Record shows that neither party had initiated any

discovery. 16

¶40 The Oklahoma Pleading Code gives the court discretion to permit

enlargement of time to respond for good cause. 12 O.S.2011, § 2006; Davis v.

Martin Marietta Materials, Inc. , 2010 OK 78, ¶ 1(3), 246 P.3d 454, 455. However, the

statute directs that the motion for extension of time be filed before the

expiration of the original deadline. 12 O.S.2011, § 2006(B)(1 ) 17 ; Powers

v. District Court of Tulsa County, 2009 OK 91, ¶ 4, 227 P.3d 1060, 1066; Humphries

v. Lewis , 2003 OK 12, ¶ 6,

67 P.3d 333, 335 (emphasizing

"before"); see Langford v. Anderson, 1989 OK CIV APP 47, ¶ 5, 778 P.2d 937, 938 (noting that a

party did not have an absolute right to discovery before a ruling on a motion to

dismiss).

¶41 Here, Plaintiffs did not file prior to the deadline or offer a good cause

basis to grant an extension of time. Hence, the Record does not reveal any basis

to find that the trial court abused its discretion.

¶42 The petition-in-error states only that the trial court committed error as

a matter of law without permitting discovery. As shown here, there is no

absolute right to an extension of time. Therefore, in addition, the

petition-in-error does not set out a ground for reversal.

¶43 The trial court did not err by ruling on the motion to dismiss without

granting additional time to Plaintiffs for discovery.

CONCLUSION

¶44 Section 155(4) of the GTCA provides for immunity for "[A]doption or

enforcement of or failure to adopt or enforce a law, whether valid or

invalid, including, but not limited to, any statute, charter provision,

ordinance, resolution, rule, regulation or written policy." Viewed in the best

light possible, Plaintiffs alleged that DHS failed to enforce the law. DHS is

thus immune from liability. The trial court correctly ruled that the tort claims

of negligence, negligence per se , and intentional infliction of emotional

distress must be dismissed because DHS has immunity under Section 155(4). The

damage claim for loss of consortium was also correctly dismissed because it is

an item of damages for the torts. Section 155(29) of the GTCA does not apply to

this case.

¶45 Plaintiffs' claim that they have a cause of action under the holding of

Bosh v. Cherokee County Governmental Bldg. Auth ., 2013 OK 9, 305 P.3d 994, is denied. This Court

interprets Bosh as providing a cause of action in order to protect

against violations of constitutional rights and guarantees in general rather

than being limited to the specific constitutional right involved in the case.

Nevertheless, not every misfeasance, malfeasance and nonfeasance amounts to a

violation of constitutional rights. In its role as gatekeeper, the trial court

determines whether the alleged conduct might reasonably be determined to be of

the character of a violation of constitutional rights. Here, the alleged action

and inaction on the part of DHS might constitute gross negligence, but they do

not rise to the level of a violation of constitutional rights. Therefore, the

trial court reached the correct result by dismissing the Bosh claim.

¶46 The trial court did not err by ruling on the motion to dismiss without

granting additional time for discovery.

¶47 The judgment of the trial court dismissing the Plaintiffs' petition is

affirmed.

¶48 AFFIRMED .

BARNES, J., and THORNBRUGH, J., concur.

FOOTNOTES

1 The

caption of the petition in the trial court lists "John Does 1-30, unknown

individuals employed by Oklahoma Department of Human Services." The appealed

Order does not dispose of any claim against the John Doe Defendants, or any

persons actually named as employees in the petition. However, the District Court

docket sheet in the Appellate Record does not reflect that summons was issued

and served as to any Defendant other than DHS. Only the liability of the State

is at issue on appeal because Plaintiffs did not name or serve any individuals

prior to the dismissal Order. Tanique, Inc. v. State ex rel. Oklahoma Bureau of

Narcotics and Dangerous Drugs, 2004

OK CIV APP 73, ¶ 10, 99 P.3d

1209, 1213; see High v. Southwestern Insurance Company, 1974 OK 35, 520 P.2d 662 (construing now

repealed 12 O.S.1971, § 320 to

require service of summons). Therefore, this Court finds that the Order of

dismissal is a final, appealable order.

2 The

list of Issues Presented attached as Exhibit "C" to the petition-in-error does

not list error by a dismissal of the civil conspiracy claim. Therefore, the

ruling as to the civil conspiracy claim is not before this Court.

3 These

are Plaintiffs' Causes of Action: (1) First and Third, negligence and negligence

per se; (2) Fourth, intentional infliction of emotional distress; and, (3)

Sixth, loss of consortium. There is no serious dispute about the fact that the

Sixth cause of action is actually an item of damages and not a separate cause of

action.

Plaintiffs listed six "causes of action" with the charging facts the same.

Plaintiffs have one cause of action with five theories of recovery and one

request for an item of damages. Bryson v. Oklahoma County , 2013 OK CIV

APP 98, 261 P.3d 627, n.1

(citing Resolution Trust Corp. v. Greer , 1995 OK 126, 911 P.2d 257).

4 Section

153(A) and (B) provide:

A. The state or a political subdivision shall be liable for loss resulting

from its torts or the torts of its employees acting within the scope of their

employment subject to the limitations and exceptions specified in The

Governmental Tort Claims Act and only where the state or political subdivision,

if a private person or entity, would be liable for money damages under the laws

of this state. The state or a political subdivision shall not be liable under

the provisions of The Governmental Tort Claims Act for any act or omission of an

employee acting outside the scope of the employee's employment.

B. The liability of the state or political subdivision under The Governmental

Tort Claims Act shall be exclusive and shall constitute the extent of tort

liability of the state, a political subdivision or employee arising from common

law, statute, the Oklahoma Constitution, or otherwise. If a court of competent

jurisdiction finds tort liability on the part of the state or a political

subdivision of the state based on a provision of the Oklahoma Constitution or

state law other than The Governmental Tort Claims Act, the limits of liability

provided for in The Governmental Tort Claims Act shall apply.

5 This

provision reads:

The state or a political subdivision shall not be liable if a loss or claim

results from:

. . . .

4. Adoption or enforcement of or failure to adopt or

enforce a law, whether valid or invalid, including, but not limited to, any

statute, charter provision, ordinance, resolution, rule, regulation or written

policy;

. . . .

29. Any claim based upon an act or omission of an employee

in the placement of children.

6

Plaintiffs' allegations of fact are taken as true only for the purpose of

determining whether an actionable claim has been alleged. Indiana Nat'l

Bank , 1994 OK 98 at ¶ 3, 880

P.2d at 375.

7 The

allegation regarding what transpired regarding the report of Daughter's abuse

may also be considered as a complaint about enforcement of the law. Thus,

Skurnack provides persuasive authority that DHS is immune regarding the

allegations relating to Daughter's abuse.

8 This

provision of the Oklahoma Constitution reads:

The right of the people to be secure in their persons, houses, papers, and

effects against unreasonable searches or seizures shall not be violated; and no

warrant shall issue but upon probable cause supported by oath or affirmation,

describing as particularly as may be the place to be searched and the person or

thing to be seized.

9 Another

way to state the problem is: What is the scope of the precedent set by Bosh?

See Shawn J. Bayern, Case Interpretation , 36 Fla. St. Univ. L. R. 125

(2009), for interpretation background and one approach to determining the

meaning of cases.

10 In

Bryson v. Oklahoma County , 2011 OK CIV APP 98, 261 P.3d 627, the Court recognized

that the GTCA did not provide immunity for a prisoner's claim that a detention

officer using excessive force violated his constitutional rights under Okla.

Const., Art. 2, § 30 and the Fourth Amendment to the United States

Constitution.

11

See Jackson v. Oklahoma City Pub. Sch ., 2014 OK CIV APP 61, 333 P.3d 975, finding Bosh

inapplicable to a claim that a teacher committed an assalt and a battery on a

student because the student was neither arrested nor detained.

12 Farmer v. Brennan , 511 U.S. 825,

834, 114 S. Ct. 1970, 1977 (1994) (not every injury suffered by a prisoner

translates into a constitutional rights violation); Estelle v. Gamble ,

429 U.S. 97, 104, 105, 97 S. Ct. 285, 291 (1976) (physician negligence or

malpractice regarding inmates alone does not amount to a violation of

constitutional rights).

13

This Court finds no legal significance from the fact that many of these cases

involve search and seizure or cruel and unusual punishment as opposed to other

constitutional rights. The Bosh Court did not limit protection to

specific constitutional rights and guarantees.

14

See n.11.

15

Yvonne L., By and Through Lewis v. New Mexico Dep't of Human Services ,

959 F.2d 883 (10th Cir. 1992) (minors in state custody have constitutional right

to safety).

16

This Court notes that the DHS' motion is not a motion for summary judgment nor a

motion to dismiss treated as a summary judgment. Thus, the provision for

additional discovery in summary judgment proceedings does not apply here. 12 O.S.2011, § 2056(F); Rule 13(d),

Rules for Districts Courts, 12 O.S.2011, Ch. 2, app. Moreover, Plaintiffs did

not comply with the requirements of Section 2056(F) and Rule 13(d). In an

unreported decision, the Court ruled that the federal equivalent Rule does not

apply to motions to dismiss. Xie v. University of Utah , 243 Fed. Appx.

367 (10th Cir. 2007).

17

Section 2006(B)(1) provides:

B. ENLARGEMENT. When by this title or by a notice given thereunder by order

of court an act is required or allowed to be done at or within a specified time,

the court for cause shown may at any time in its discretion:

1. With or without motion or notice order the period enlarged if request

therefor is made before the expiration of the period originally prescribed or as

extended by a previous order.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

1989 OK CIV APP 47, 778 P.2d 937, 60 OBJ 2221, Langford v. Anderson Discussed

2002 OK CIV APP 37, 46 P.3d 198, SKURNACK v. STATE EX. REL. DEPT. OF HUMAN SERVICES Discussed

2004 OK CIV APP 73, 99 P.3d 1209, TANIQUE, INC. v. STATE ex rel. OKLA. BUREAU OF NARCOTICS AND DANGEROUS DRUGS Discussed

2004 OK CIV APP 75, 99 P.3d 703, BORDWINE v. OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM Discussed

2005 OK CIV APP 39, 116 P.3d 195, FELKINS v. OKLAHOMA FIREFIGHTERS PENSION and RETIREMENT SYSTEM Discussed

2011 OK CIV APP 98, 261 P.3d 627, BRYSON v. OKLAHOMA COUNTY ex rel. OKLAHOMA COUNTY DETENTION CNTR. Discussed at Length

2014 OK CIV APP 61, 333 P.3d 975, JACKSON v. OKLAHOMA CITY PUBLIC SCHOOLS Discussed

2000 OK CIV APP 44, 3 P.3d 711, 71 OBJ 1342, SPIELMAN v. HAYES Discussed

Oklahoma Supreme Court Cases

Cite Name Level

1994 OK 98, 880 P.2d 371, 65 OBJ 2520, Indiana Nat. Bank v. State Dept. of Human Services Discussed at Length

1945 OK 55, 156 P.2d 340, 195 Okla. 131, OKLAHOMA COUNTY v. QUEEN CITY LODGE No. 197 Discussed

1971 OK 32, 482 P.2d 927, THOMPSON v. INMAN Discussed

1995 OK 126, 911 P.2d 257, 66 OBJ 3566, Resolution Trust Corp. v. Greer Discussed

1974 OK 35, 520 P.2d 662, HIGH v. SOUTHWESTERN INSURANCE COMPANY Discussed

2003 OK 12, 67 P.3d 333, HUMPHRIES v. LEWIS Discussed

1930 OK 563, 297 P. 228, 148 Okla. 70, STONE v. BONAPARTE Discussed

2006 OK 67, 145 P.3d 1055, WORSHAM v. NIX Cited

2008 OK 1, 176 P.3d 1204, DARROW v. INTEGRIS HEALTH, INC. Discussed

1996 OK 125, 932 P.2d 1100, 67 OBJ 3566, Neil Acquisition, L.L.C. v. Wingrod Investment Corp. Discussed

2009 OK 91, 227 P.3d 1060, POWERS v. DISTRICT COURT OF TULSA COUNTY Discussed

2010 OK 78, 246 P.3d 454, DAVIS v. MARTIN MARIETTA MATERIALS INC. Discussed

2013 OK 9, 305 P.3d 994, BOSH v. CHEROKEE COUNTY GOVERNMENTAL BUILDING AUTHORITY Discussed at Length

2013 OK 64, 307 P.3d 337, COURTNEY v. STATE OF OKLAHOMA Discussed

2014 OK 42, 328 P.3d 1192, SMITH v. CITY OF STILLWATER Discussed

1998 OK 24, 956 P.2d 887, 69 OBJ 1172, MILLER v. MILLER Discussed

1999 OK 68, 990 P.2d 235, 70 OBJ 2226, State ex. rel. Dept. of Human Services v. Baggett Discussed

Title 12. Civil Procedure

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12 O.S. 2056, Motion for Summary Judgment Cited

12 O.S. 320, Repealed by Laws 1984, SB 417, c. 164, § 32, eff. November 1, 1984 Cited

12 O.S. 2006, Time Discussed

12 O.S. 2012, Defenses and Objections - When and How Presented - By Pleading or Motion Cited

Title 51. Officers

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51 O.S. 155, Exemptions From Liability Cited

51 O.S. 153, Liability - Scope - Exemption Discussed