Callier v. Pottawatomie County Public Safety Center Trust et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SHELLY CALLIER, as Co-Administrator )
of the Estate of KELLIE WRIGHT, )
deceased, )
)
Plaintiff, )
) CIV-23-594-G
v. )
)
POTTAWATOMIE COUNTY PUBLIC )
SAFETY CENTER TRUST et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Shelly Callier filed this action under 42 U.S.C. § 1983 alleging civil rights
violations. (ECF No. 8). Before the Court is Defendant Turn Key Health Center, LLC and
Nikki Hale, LPN’s Motions to Dismiss. (ECF Nos. 18 & 22, respectively). Plaintiff has filed
a Response to each Motion and Defendants have replied. (ECF. Nos. 25-28). United States
District Judge Charles B. Goodwin referred the matter to the undersigned magistrate
judge for initial proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B)-(C). For the following reasons, it is recommended the Motions to Dismiss
be DENIED.
I. Plaintiff’s Amended Complaint
On October 18, 2023, Plaintiff, as Co-Administrator of the Estate of Kellie Wright,
filed an Amended Complaint asserting multiple claims arising from the circumstances
surrounding Ms. Wright’s death during her confinement as a pre-trial detainee at the
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Pottawatomie County Public Safety Center Trust (“PCPT”). (ECF No. 8). Plaintiff named
as Defendants the PCPT, Turn Key Health Clinics, LLC (“Turn Key”), Nurse Nikki Hale, and
John Does 1-5. (ECF No. 8:2-3). Defendant Turn Key is a third-party contractor
responsible for providing medical services to those in custody in the PCPT. (ECF 8:2).
In the Amended Complaint, Plaintiff sets forth the following allegations. On July 9,
2021, Ms. Wright was staying at the Grand Casino Hotel & Resort (“GCHR”) in McLoud,
Oklahoma for the 75th Annual Oklahoma Society of Accountants convention. At or around
8:00 p.m., a GCHR employee noticed Ms. Wright’s hand was stuck in an elevator at the
casino. The employee contacted casino security to assist Ms. Wright. Citizen
Pottawatomie Nation Tribal Officer/Pottawatomie County Sheriff’s Officer/McLoud Police
Department Officer/Tecumseh Police Department Officer Orrin Beckham (“Beckham”),
who was cross-commissioned by these four law enforcement entities, responded to the
security request. When Beckham encountered Ms. Wright, she told Beckham that she had
“talked to God” and that “she was going to die.” (ECF No. 8:4).
Beckham, along with GCHR Security Supervisor, tackled Ms. Wright to the ground
and placed her in handcuffs for a purported investigatory detention. After apparently
struggling to communicate with Ms. Wright, Beckham took her to his patrol unit and
proceeded to arrest her for assault and battery on an officer, resisting, obstruction, and
public intoxication. At or around 9:00 p.m., Beckham delivered Ms. Wright to the PCPT
“without further incident.” (ECF No. 8:5).
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Upon information and belief, Defendant Hale was the only individual with any
medical training on staff at PCPT. Neither she nor anyone else conducted a medical intake
screening process for Ms. Wright. During the booking process, Ms. Wright was confused,
disoriented, delirious, and otherwise in obvious need of emergent medical attention.
Instead of contacting a medical professional to assure that Ms. Wright was medically fit
for booking, John Does 1-5 placed her in a holding cell. No-one placed Ms. Wright on
protocols for allegedly intoxicated inmates or inmates with serious medical conditions,
secure increased supervision for Ms. Wright, or referred her to a medical provider with
more training than an LPN. (ECF No. 8:5-6).
For many hours, Ms. Wright continued to display obvious signs of a serious and
emergent medical need, including disorientation, confusion, and delirium. She continually
paced around her cell, lay on the floor, constantly fidgeted, and was in a clear state of
distress. Ms. Wright was not regularly monitored or supervised during the time she was
incarcerated at the PCPT, despite the precarious state of her health. (ECF No. 8:6).
At approximately 6:45 a.m. on July 10, 2021, Defendant Hale, along with John
Does 1-5, visited Ms. Wright’s cell. This visit was the only time Defendant Hale, or any
medical professional, saw Ms. Wright during her confinement. Defendant Hale stayed in
Ms. Wright’s cell for approximately one minute, took no vitals, and provided no treatment
or assessment. Defendant Hale later noted that she observed Ms. Wright as having been:
1) anxious; 2) pacing; 3) talkative; 4) angry; 5) oppositional; and 6) yelling gibberish.
Defendant Hale also noted that Ms. Wright had engaged in “deliberate self-harm” and
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had bruising and cuts on her body and swelling in her hands and extremities. (ECF 8:6-
7).
Despite Defendant Hale acknowledging that Ms. Wright was displaying obvious
signs of a serious medical and/or mental health condition, she provided absolutely no
care, nor did she refer Ms. Wright to an RN, physician, or outside medical provider. Ms.
Wright never received a medical or toxicology screening, was never medically assessed
by a health care professional, and was not evaluated by anyone at the PCPT for any
medical conditions or complications. Additionally, as evidenced by the many bruises and
wounds all over her body at the time of her death, during her confinement, Ms. Wright
was subjected to excessive use of force by PCPT staff and/or was assaulted by another
detainee/inmate. (ECF No. 8:7 & 9).
At approximately 8:30 a.m. on July 10, 2021, guards slipped a breakfast tray into
Ms. Wright’s cell. Rather than eating, Ms. Wright flipped the tray over with her feet and
continued pacing around her cell, occasionally lying down on the bench in her cell for a
few minutes at a time. At approximately 9:00 a.m., Ms. Wright’s already-bizarre behavior
worsened. She lay down on the floor of her cell and moved her limbs around on the filthy
floor. She then started smearing her breakfast tray around the floor and on herself.
Between approximately 9:30 a.m. and 9:45 a.m., Ms. Wright continued lying down on
the floor of her cell, slowly running her hands across the dirty ground and rocking back
and forth. (ECF 8:9).
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At approximately 9:48 a.m., Ms. Wright grabbed her breakfast tray while lying on
her back and smeared it across her chest and stomach. She then resumed slowly rocking
back and forth on the ground. This behavior continued until approximately 10:07 a.m.,
when Ms. Wright stopped moving. She was lying on her back with one leg against a wall
of the cell and her right arm across her body. (ECF No. 8:10).
Ms. Wright stayed in this position until approximately 10:21 a.m., when guards,
believed to be John Does 1-5, and Defendant Hale, entered the cell, found Ms. Wright
unresponsive and not breathing, and began administering CPR. She was then sent to
Saint Anthony’s Hospital in Shawnee, Oklahoma. Plaintiff, Ms. Wright’s spouse, was
notified upon arrival that she had suffered a loss of oxygen to the brain (anoxic
encephalopathy) and had bruising all over her body. At approximately 8:00 p.m. on July
10, 2021, Ms. Wright died at Saint Anthony’s Hospital. (ECF No. 10).
A subsequent autopsy by the Office of the Chief Medical Examiner (“ME Report”)
revealed multiple facts pertinent to Plaintiff’s allegations, including: 1). Ms. Wright died
of anoxic encephalopathy due to cardiac arrest; 2) Ms. Wright also suffered from
“pulmonary congestion and edema,” and “cerebral edema with microscopic evidence of
acute ischemia,” which contributed to her death; 3) Ms. Wright had “multiple bruises over
the body, (anterior shoulders and upper extremities, left chest and abdomen, and anterior
lower extremities mostly about the knees)”; 4) “The upper extremities in particular
exhibited multiple discreet and confluent bruises over the dorsal and ventral surfaces with
largely confluent bruising and swelling of the wrists and hands”; 5) Ms. Wright also had
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“a small, patterned abrasion [on] the dorsal ulnar right wrist” and “an irregular, deroofed
blister-like wound of the right palm of the hand”; 6) Examination of Ms. Wright’s lungs
revealed evidence of “vascular congestion with focal evidence of aspiration”; 7) Ms.
Wright’s medical history included “hypertension, chronic ethanol use, depression, and
delirium episode during July 2020 hospitalization”; 8) Ms. Wright did not have any illicit
drugs in her system at the time of her death, and all positive results from her toxicology
screen were consistent with prescription medications she was taking at the time; and 9)
Alcohol was present in Ms. Wright’s system, but it was an extremely negligible amount
(32mg/dl). (ECF No. 10-11).
Plaintiff asserts these findings in the ME Report indicate that: 1) Based on evidence
of pulmonary congestion and cerebral edema, Ms. Wright experienced an episode(s) of
bleeding that contributed to her death; 2) Based on evidence of bruising, abrasion, and
blistering, Ms. Wright was restrained during her time in the PCPT; 3) Based on evidence
of aspiration, Ms. Wright was choking while she was incarcerated in PCPT; 4) Based on
the toxicology results, Ms. Wright’s behavior, injuries, and death were not the result of
any intoxicating substance(s); and 5) Based on her medical history, Ms. Wright’s behavior
at the time she presented to the PCPT, and her continued behavior while incarcerated for
approximately twelve hours, warranted immediate referral to medical personnel for an
emergent medical condition(s). (ECF No. 8:11-12).
Following Ms. Wright’s death, Plaintiff initiated the current lawsuit on behalf of her
estate. Plaintiff asserts a Fourteenth Amendment claim against Defendant Hale and John
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Does 1-3 based on their alleged failure to protect Ms. Wright. She also asserts a
Fourteenth Amendment claim based on excessive force against John Does 1-5. She
asserts a claim under the Fourteenth Amendment based upon deliberate indifference to
Ms. Wright’s medical needs against Defendant Hale. She also asserts each of these claims
against PCPT based on allegations that each violation is a result of PCPT’s customs,
practices, and/or policies.1 Finally, she asserts a claim of municipal liability against
Defendant Turn Key, alleging that Turn Key’s policies, customs, and practices resulted in
a violation of Ms. Wright’s Fourteenth Amendment right to adequate medical care. (ECF
No. 8:19-23). Defendants Turn Key and Hale request that the Court dismiss Plaintiff’s
claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6) based on failure
to state a claim upon which relief can be granted.
II. Standard of Review
Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6). (ECF
Nos. 18, 22). Pursuant to
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), to survive a motion to dismiss, a complaint must
contain enough allegations of fact, taken as true, “to state a claim to relief that is plausible
on its face.”
Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting
Twombly, 550 U.S. at 570). Under this standard, “the mere metaphysical possibility that
some plaintiff could prove some set of facts in support of the pleaded claims is insufficient;
the complaint must give the court reason to believe that this plaintiff has a reasonable
1 PCPT filed an Answer in response to Plaintiff’s Amended Complaint. (ECF No. 15).
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likelihood of mustering factual support for these claims.”
Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007)).
The “plausibility” standard announced in
Twombly and
Iqbal is not considered a
“heightened” standard of pleading, but rather a “refined standard,” which the court of
appeals has defined as “refer[ring] to the scope of the allegations in a complaint: if they
are so general that they encompass a wide swath of conduct, much of it innocent, then
the plaintiffs have not nudged their claims across the line from conceivable to plausible.”
Khalik, 671 F.3d at 1191 (citing
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214
(10th Cir. 2011) (additional quotations omitted)). The Tenth Circuit has noted that the
nature and specificity of the allegations required to state a plausible claim will vary based
on context.
Robbins, 519 F.3d at 1248. “Thus, [it has] concluded the
Twombly/Iqbal
standard is ‘a middle ground between heightened fact pleading, which is expressly
rejected, and allowing complaints that are no more than labels and conclusions or a
formulaic recitation of the elements of a cause of action, which the Court stated will not
do.’”
Khalik, 671 F.3d at 1191 (quoting
Robbins, 519 F.3d at 1247).
Accordingly, in deciding
Twombly and
Iqbal, there remains no indication the
Supreme Court “intended a return to the more stringent pre-Rule 8 pleading
requirements.”
Khalik, 671 F.3d at 1191 (citing
Iqbal, 556 U.S. at 678). It remains true
that “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’”
Erickson v. Pardus,
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551 U.S. 89, 93 (2007) (quoting
Twombly, 550 U.S. at 555). Whether a complaint
contains sufficient facts to avoid dismissal is context-specific and is determined through
a court's application of “judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true
all well-pleaded factual allegations in the complaint and view[s] them in the light most
favorable to the plaintiff.”
Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,
1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted
when it lacks factual allegations sufficient “to raise a right to relief above the speculative
level on the assumption that all the allegations in the complaint are true (even if doubtful
in fact).”
Twombly, at 555 (2007) (citation omitted). Bare legal conclusions in a complaint
are not entitled to the assumption of truth; “they must be supported by factual
allegations” to state a claim for relief.
Iqbal, 556 U.S. at 679.
III. Claim Against Defendant Hale
It is well established that under the Fourteenth Amendment due process clause,
pretrial detainees are entitled to the degree of protection against denial of medical
attention which applies to convicted inmates under the Eighth Amendment.
Lucas v. Turn
Key Health Clinics, LLC, 58 F.4th 1127, 1136 (10th Cir. 2023) (citing
Paugh v. Uintah
Cnty., 47 F.4th 1139, 1153–54 (10th Cir. 2022);
Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000)). Deliberate indifference contains both an objective and subjective
component.
Id. The objective component is satisfied if the deprivation is “sufficiently
serious.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994). “A medical need is sufficiently
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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.”
Sealock, 218 F.3d at 1209 (quotations omitted). In the present case,
Defendant Hale does not challenge the objective component of Plaintiff’s claim.
The standard for the subjective component is that the official “knows of and
disregards an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837. The
official must be aware of the facts from which the inference of a substantial risk of serious
harm could be drawn and also draw that inference.
Id. A plaintiff “need not show that a
prison official acted or failed to act believing that harm actually would befall an inmate,”
but rather that the official “merely refused to verify underlying facts that he strongly
suspected to be true, or declined to confirm inferences of risk that he strongly suspected
to exist.”
Lucas, 58 F.4th at 1137 (quoting
Farmer, 511 U.S. at 842, 843 n.8.) “Whether
a prison official had the requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference from circumstantial
evidence” such as whether “the risk was obvious.”
Id. (quoting
Farmer, 511 U.S. at 842).
An official disregards risk when he fails to take reasonable measures to abate the risk.
Id. (citing
Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1029 (10th Cir.
2020)).
In
Lucas, the Tenth Circuit explained:
In
Sealock, we stated that the subjective component can be satisfied under
two theories: failure to properly treat a serious medical condition (“failure
to properly treat theory”) or as a gatekeeper who prevents an inmate from
receiving treatment or denies access to someone capable of evaluating the
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inmate’s need for treatment (“gatekeeper theory”). [
Sealock,] 218 F.3d at
1211. The latter theory can apply to medical professionals when the
professional knows that his or her role in a medical emergency is solely to
refer the patient to another.
Id. Even a brief delay in treatment can be
unconstitutional.
Mata v. Saiz, 427 F.3d 745, 755 (10th Cir. 2005).
Lucas, 58 F.4th at 1137.
Accepting Plaintiff’s allegations as true, Ms. Wright was exhibiting clear signs of
extreme instability when Defendant Hale saw her for the first time at 6:45 a.m. on July
10, 2021. (ECF No. 8:6). Defendant Hale later noted that when she observed her, Ms.
Wright was anxious, pacing, talkative, angry, oppositional, and yelling gibberish.
Defendant Hale also noticed bruising, cuts, and swelling on Ms. Wright’s body and
presumed they were self-inflicted injuries. (ECF No. 8:7). Drawing all inferences in
Plaintiff’s favor, it appears Defendant Hale presumed Plaintiff was intoxicated or otherwise
under the influence.2 However, by 6:45 a.m. on July 10, 2021, when Defendant Hale first
saw her, Ms. Wright had been confined in an isolation cell alone for ten hours. Thus, the
chances of Ms. Wright being under the influence were minimal. Under these
circumstances, that Ms. Wright was suffering from a serious medical condition should
have been obvious to Defendant Hale. “When a risk is obvious, it is circumstantial
evidence of an official’s awareness of serious medical need.”
Lucas, 58 F.4th at 1139
(citing
Self v. Crum, 439 F.3d 1227, 1231-32 (10th Cir. 2006)). Yet, in spite of Ms. Wright’s
concerning behavior, Defendant Hale stayed in Ms. Wright’s cell for only one minute, did
2 Defendant Hale concedes in her Motion to Dismiss that upon seeing Ms. Wright on July 10,
2021, she presumed Ms. Wright was intoxicated. (ECF No. 22:13).
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not perform any assessment, and did not attempt to notify a physician or other medical
professional of Ms. Wright’s condition.
The undersigned finds Plaintiff’s allegations against Defendant Hale plausibly set
forth a Fourteenth Amendment deliberate indifference claim under both the failure to
properly treat and gatekeeper theories.
See Lucas, 58 F.4th at 1139 (“[D]oing nothing in
the face of serious medical needs is obviously sufficient to state a claim under both [the
failure to properly treat and gatekeeper] theories.”). To satisfy the deliberate indifference
claim’s subjective component, the offending officials must have acted with a sufficiently
culpable state of mind.
Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009). Plaintiff
alleges that Defendant Hale essentially ignored Ms. Wright’s obviously deteriorated
mental state, failing to take any action and/or provide even a modicum of medical care.
See Lucas, 58 F.4th at 1137 (explaining that a failure to take reasonable measures to
abate an obvious significant risk may constitute deliberate indifference).
Additionally, “[t]he inquiry under a gatekeeper theory is . . . whether the[]
[relevant official] fulfilled their sole obligation to refer or otherwise afford access to
medical personnel capable of evaluating a patient’s treatment needs when such an
obligation arises.”
Id. at 1139 (citing
Sealock, 218 F.3d at 1211;
Mata, 427 F.3d at 751–
61). As the only medical provider on site, Defendant Hale was the sole individual that
could have ensured Ms. Wright, whose behavior indicated an obvious risk to her health
and safety, was seen by a RN, physician, or other medical provider. However, Defendant
Hale took no steps to do so.
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Accepting Plaintiff’s allegations as true, Plaintiff has adequately alleged that
Defendant Hale was subjectively aware of Ms. Wright’s serious medical condition and
disregarded the substantial risk of harm posed to her if she did not receive medical care.
Thus, Plaintiff’s allegations sufficiently establish the objective and subjective components
of a deliberate indifference claim against Defendant Hale. Accordingly, Defendant Hale’s
Motion to Dismiss Plaintiff’s Fourteenth Amendment deliberate indifference claim should
be denied.3
IV. Claims Against Defendant Turn Key4
Basic to any action under 42 U.S.C. § 1983 is the allegation by the plaintiff that
the defendant was acting under color of state law.
McCarty v. City of Bartlesville, 8 F.
App’x 867, 873 (10th Cir. 2001). In
Monell v. Department of Social Services of New York,
436 U.S. 658 (1978), the Supreme Court held that a municipality is “included among
those persons to whom § 1983 applies,” but it cannot be held liable under
§ 1983 solely because it employs a tortfeasor (i.e., pursuant to a
respondeat superior
theory).
Id. at 690-91. Rather, a municipality can be held liable under § 1983 only if it
has an “official municipal policy of some nature” that “causes an employee to violate
another’s constitutional rights.”
Id. at 691-92 (quotations omitted). The Tenth Circuit has
3 Defendant Hale did not seek dismissal of Plaintiff’s Fourteenth Amendment claim based upon a
failure to protect theory. (ECF No. 8:20).
4 Defendant Turn Key’s first basis for dismissal is based on its contention that Plaintiff failed to
adequately assert an underlying constitutional claim against Defendant Hale. (ECF No. 18:8-15).
As the undersigned has already established that Plaintiff has set forth a plausible claim against
Defendant Hale, it is unnecessary to address this request for dismissal.
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held that
Monell’s municipal liability theory applies equally to private entities acting under
color of state law.
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 n.13 (10th Cir. 2003).
Thus, in order to maintain a § 1983 claim against Turn Key, plaintiff must sufficiently
allege a theory of municipal liability.
To establish municipal liability, a plaintiff must show (1) the existence of a policy
or custom, (2) a direct causal link between the policy or custom and the constitutional
injury alleged, and (3) that the municipality acted with deliberate indifference.
Prince v.
Sheriff of Carter Cnty., 28 F.4th 1033, 1049-51 (10th Cir. 2022). Additionally, as the Tenth
Circuit explained in
Johnson v. Davis County, No. 21-4030, 2022 WL 830202 (10th Cir.
March 21, 2022),
“In most cases,” . . . a municipality’s liability under
Monell “depend[s] on
whether a
specific municipal officer violated an individual’s constitutional
rights.” [
Crowson v. Washington Cnty. Utah, 983 F.3d 1166, 1191 (10th Cir.
2020)] (emphasis added). But when a municipal-liability claim is premised
on the municipality’s “systemic failure[s],” no single individual defendant
need be found liable.
Id. at 1192.
Id. at * 3.
See also Crowson, 983 F.3d at 1192 (recognizing that even if health care
providers “[do] not violate the Constitution individually, . . . their
combined acts may be
sufficient for
Monell liability such that [a plaintiff] still has a claim for municipal liability
irrespective of whether [an individual health care provider] violated his rights”;
distinguishing between claims against a county premised on “
systemic failures” and
claims dependent upon a “predicate violation” by an individual defendant. (quotations
and citation omitted)). Here, Plaintiff claims both that an individual, Defendant Hale,
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violated Ms. Wright’s constitutional right to adequate medical care and also, that a
systemic failure resulted in the constitutional violations.
Relevant to the present case, the Tenth Circuit has found persuasive an
unpublished decision of the Third Circuit discussing cost-saving policies.
See Sherman v.
Klenke, 653 F. App’x 580, 593 (10th Cir. 2016) (citing
Winslow v. Prison Health Servs.,
406 F. App’x 671, 674 (3d Cir. 2011)). Therein, the Third Circuit indicated that, to
plausibly allege a cost-saving policy that was the moving force behind the constitutional
violation, a plaintiff must allege “(1) what the relevant policies are, (2) what basis
[plaintiff] has for thinking that policies to save money affected his medical treatment,
[and] (3) what specific treatment he was denied as a result of these policies.”
Prince v.
Turn Key Health Clinics, LLC, No. 18-CV-0282-CVE-JFJ, 2019 WL 238153, at *5 n.7 (N.D.
Okla. Jan. 16, 2019). This court also finds
Winslow persuasive.
Plaintiff identifies the following to support her claim that Turn Key has cost-saving
policies or practices of inadequately staffing county jails, including PCPT, with
undertrained, underqualified, and unsupervised medical personnel who are ill-equipped
to evaluate, assess, supervise, monitor, or treat inmates.
• Under its contract, Turn Key is responsible for the costs of all pharmaceuticals;
• PCPT/Pottawatomie County is responsible for the costs of all inmate
hospitalizations and off-site medical care;
• These provisions create a dual financial incentive to under-prescribe and under-
administer medications and to keep inmates at PCPT to avoid off-site medical
costs;
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• Turn Key has no protocol or clear policy with respect to the medical monitoring
and care of inmates with complex or serious medical needs;
• Turn Key does not have a policy and provides no guidance to its medical staff
regarding the appropriate standards of care with respect to inmates with complex
or serious medical needs;
• Turn Key does not provide an on-site physician, psychiatrist, psychologist, or RN
at PCPT;
• Turn Key provides only an on-site LPN who is not licensed to diagnose or treat
serious medical conditions; and,
• Turn Key employs a very small number of physicians as “roving” providers that
work at numerous facilities across Oklahoma. This policy or practice results in the
unavailability of physicians to numerous inmates across the state.
(ECF No. 8:15-17). Courts have found less specific policy allegations sufficient to support
a municipal liability claim against third party medical providers.
See Young v. Corr. Health
Care Cos., Inc., No. 13-CV-315-IDJ-JFJ, 2024 WL 81547, at *5 (N.D. Okla. Jan. 8, 2024)
(explaining jury properly relied on Correctional Health Care’s policy of refusing to send
inmates with obvious medical needs to the hospital to find municipal liability);
Prince,
2019 WL 238153, at *5 (finding allegations that “Turn Key has a policy of reducing the
cost of healthcare services in a manner that would maintain or increase its profit margin”
and “Turn Key’s contract incentivizes cost-cutting measures in the delivery of healthcare
services . . . to benefit Turn Key’s investors, while depriving arrestees at DLMCJC from
receiving adequate medical care” was “minimally sufficient” to establish a relevant policy
or custom for purposes of municipal liability). Thus, taking the allegations in Plaintiff’s
Amended Complaint as true, the Court finds she has plausibly alleged the policy or custom
element of a
Monell claim.
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Plaintiff must next satisfy the causation element of a
Monell claim. “For causation
. . . the challenged policy or practice must be closely related to the violation of the
plaintiff’s federally protected right.”
Hinkle v. Beckham Cnty. Bd. of Cnty. Comm'rs, 962
F.3d 1204, 1241 (10th Cir. 2020) (quotations omitted). The policy or custom must be
“the moving force behind the injury alleged.”
Schneider v. City of Grand Junction Police
Dep’t, 717 F.3d 760, 770 (10th Cir. 2013) (quotations omitted). Here, the policies and
practices upon which Plaintiff relies are sufficiently linked to Ms. Wright’s death to sustain
a
Monell claim at this stage of the proceedings. Plaintiff directly alleges that Ms. Wright’s
death was the result of Turn Key’s cost-saving measures, including but not limited to not
having a physician on-site, employing only an LPN who is not trained to diagnose or treat
a serious medical condition, and not maintaining any protocol or clear policy with respect
to the medical assessment or care of inmates with complex or serious medical needs.
Finally, with regard to the final element, “[a] local government policymaker is
deliberately indifferent when he deliberately or consciously fails to act when presented
with an obvious risk of constitutional harm [that] will almost inevitably result in
constitutional injury of the type experienced by the plaintiff.”
Burke v. Regalado, 935 F.3d
960, 997-98 (10th Cir. 2019) (quotations omitted). “In the municipal liability context,”
deliberate indifference “is an objective standard” that may be “satisfied if the risk is so
obvious that the official should have known of it.”
Barney v. Pulsipher, 143 F.3d 1299,
1307 n.5 (10th Cir. 1998). A factfinder could reasonably determine that the lack of on-
site medical personnel qualified to assess serious medical conditions, as well as lack of
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protocol or clear policy with respect to the medical assessment, monitoring, and care of
inmates with complex or serious medical needs would frequently lead to a failure to
properly recognize and respond to serious conditions.
See Johnson, 2022 WL 830202, at
*4 (noting that a plaintiff may show deliberate indifference where “the County had actual
or constructive notice that its acts or omissions were substantially certain to result in
constitutional harm”);
Lance v. Morris, 985 F.3d 787, 803 (10th Cir. 2021) (“[A] factfinder
could reasonably determine that the jail guards’ lack of training would frequently lead to
disregard of serious pain complaints, violating detainees’ constitutional right to medical
care.”).
Notably, “[m]ore than one district court has held that, in assessing the pleading
standard for municipal liability, the court requires more than boilerplate allegations of a
municipal policy, but does not demand specific facts that prove the existence of a policy
when a plaintiff would not have access to such information before discovery.”
D.G. by &
through Bradley v. Westville Pub. Sch. Dist. No. I-11 of Adair Cnty., No. CV-18-045-RAW,
2018 WL 4323917, at *2 (E.D. Okla. Sept. 10, 2018) (collecting cases). “[G]iven the low
threshold . . . for surviving a motion to dismiss – [Plaintiff] alleged enough to explore
[her]
Monell claim in the discovery process.”
Quintana, 973 F.3d at 1034. Accordingly,
the Court finds Plaintiff’s Amended Complaint plausibly alleges a	
Monell claim and
Defendant Turn Key’s Motion to Dismiss should be denied.
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V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the foregoing findings, the undersigned recommends Defendants’
Motions to Dismiss (ECF Nos. 18 and 22) be DENIED.
Defendants are advised of their right to file an objection to this Report and
Recommendation with the Clerk of this Court by March 22, 2024, in accordance with
28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Defendants are further advised
that failure to make timely objection to this Report and Recommendation waives the right
to appellate review of both factual and legal issues contained herein.
Casanova v. Ulibarri,
595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF REFERRAL
This Report and Recommendation does not terminate the referral by the District
Judge in this matter.
ENTERED on March 5, 2024.
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