Hice et al v. Turn Key Health Clinics LLC et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LISA M. HICE, 	)
LEANN D. HOFF, 	)
as Co-Administrators of the 	)
Estate of Marvin G. May, 	)
Deceased, 	)
)
Plaintiffs, 	)
)
v. 	) 	Case No. CIV-24-119-JD
)
TURN KEY HEALTH CLINICS, 	)
LLC, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Defendant Stacia Unruh, LPN, seeks dismissal of Plaintiffs’ claims.
Doc. 38.1 	United States District Judge Jodi W. Dishman referred this matter
to the undersigned Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B), (C). Doc. 3. For largely identical reasons as Defendant
Tamara Carey, compare Doc. 22, with Doc. 38, Defendant Unruh argues that
Plaintiffs’ federal claims fail because they are insufficient under Federal Rule
of Civil Procedure 12(b)(6) and that Plaintiffs’ state law claims fail because she
is immune from suit under the Oklahoma Governmental Tort Claims Act
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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(“OGTCA”), 	O KLA . STAT . 	tit. 	51, 	§§ 	151-258. 	Doc. 	45. 	The 	undersigned
recommends the Court deny Defendant’s motion to dismiss.
I. 	Factual background and Plaintiffs’ claims.
On January 25, 2022, Decedent Marvin G. May was booked into the
Custer County Jail as a pretrial detainee. Doc. 1, at 4. At that time, Mr. May
was 74 years old, weighed 275 pounds, and was ambulatory. Id. He suffered
from multiple medical conditions, including chronic obstructive pulmonary
disease (“COPD”), diabetes mellitus, cardiovascular disease, and Alzheimer’s
disease. Id.
Defendant Turn Key is a third-party contractor that provides several
Oklahoma counties with medical staffing, supervision, and care for their
county jails, including the Custer County Jail. Id. at 1-2. But Defendant Turn
Key does not provide an on-site physician or APRN to their county jails. Id.
at 5, 32. Instead, it employs a few traveling physicians and APRNs to provide
care at several facilities across three states. Id. at 32. Under this staffing
policy, the personnel monitoring Mr. May’s health at the Custer County Jail
were limited to Defendant Unruh and Defendant Julie Warnke, a detention
officer. Id. at 5. In 2021 and 2022, the Oklahoma State Department of Health
cited the Custer County Sheriff’s Office for repeated violations of Oklahoma’s
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jail standards, including its failure to complete required hourly site checks to
each cell. Id. at 8.
On February 2, 2022, an inmate notified Defendant Warnke that Mr.
May had not eaten in several days and refused to shower. Id. at 5. On
February 3, 	2022, 	Defendant 	Carey 	saw 	Mr. 	May 	via 	telemedicine. 	Id.
Defendant Carey generated a “Chronic Care Note” documenting that Mr. May
suffered from hypertension, hypersensitivity lung disease, COPD, diabetes
mellitus, rheumatoid arthritis, and “worsening Alzheimer’s disease.” Id. at 6.
She also noted that Mr. May had neither eaten nor showered in seven days. Id.
She scheduled a follow up visit for ninety days later. Id.
During Mr. May’s confinement, Defendant Unruh documented that his
systolic blood pressure dropped to eighty, seventy-nine, seventy-eight, and
seventy, and that he had a diastolic blood pressure as low as fifty. Id. at 5, 7.
On February 9, 2022, jail records show that Mr. May continued refusing meals.
Id. at 8. As the days went on, Mr. May’s breathing became increasingly labored,
and he was audibly gasping for air. Id. He lay in the same position so long he
developed bed sores; he became incontinent; and his mental decline was
evident. Id. at 8-9. Defendants Unruh and Warnke were aware of Mr. May’s
physical and mental deterioration but did not attempt to provide or obtain
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medical care. Id. at 9. On March 17, 2022, Defendant Warnke was aware Mr.
May refused his medications. Id. at 9.
The next day, at about 6:04 a.m., Mr. May fell out of his bunk and was
unresponsive, lying in his own feces and covered in bed sores. Id. Defendant
Warnke instructed the dispatch officer to call 911. Id. Upon their arrival, EMS
noted Mr. May was in an altered mental state and suffering from dehydration.
Id. Jail staff informed EMS that Mr. May had eaten nothing except water for
at least the previous three weeks. Id. at 10.
At 	the 	hospital, 	medical 	personnel 	diagnosed 	Mr. 	May 	with
cardiorespiratory arrest and acute renal failure. Id. at 10. He died later that
day. Id. At the time of his death, Mr. May weighed 224 pounds—having lost
fifty-one pounds during his fifty-two-day confinement. Id. Neither Defendants
Unruh nor Warnke sought to ensure Mr. May was seen by a physician during
his confinement. Id. at 9. After a post-mortem examination, the medical
examiner 	concluded 	Mr. 	May’s 	probable 	cause 	of 	death 	was 	COVID-19
pneumonia sequelae due to severe acute respiratory syndrome. Id. at 10.
Plaintiffs Lisa M. Hice and Leann D. Hoff, as co-administrators of Mr.
May’s estate, bring state and federal claims against Defendants Turn Key;
Defendants Carey, Unruh, and Warnke, all in their individual capacities; and
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Defendant Custer County Sheriff in his official capacity. Id. at 1-4. In Count I,
Plaintiffs claim deliberate indifference to serious medical needs in violation of
the Eighth and Fourteenth Amendments under 42 U.S.C. § 1983, naming all
Defendants. Id. at 36-37. In Count II, Plaintiffs claim negligence in violation
of Oklahoma law, naming Defendant Turn Key. Id. at 40-41.2 Defendants
Carey and Turn Key move to dismiss the federal claims against them based on
failure 	to 	state 	a 	plausible 	claim 	for 	relief 	under 	Federal 	Rule 	of 	Civil
Procedure 12(b)(6) and move to dismiss the state claims against them under
the OGTCA. Docs. 14, 22.
II. 	Plaintiffs perfected service upon Defendant Unruh.
Plaintiffs did not serve Defendant by May 1, 1024. Doc. 31. The Court
ordered Plaintiffs to show cause as to why it should not dismiss their claims
against her. Id. The enlisted process server was unable to locate Defendant
Unruh at what was thought to be her address. Doc. 33, at 2. Plaintiffs’ counsel’s
office sent additional information to the process server. Id. Plaintiffs’ counsel
explained that Defendant Unruh may have been using the name Stacia
2 	In her motion, Defendant Unruh requests dismissal of Plaintiffs’ state-
law claim of negligence. Doc. 38, at 19. This issue is moot, though, because
Plaintiffs did not assert a negligence claim against Defendant Unruh. Doc. 1,
at 40-41.
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Boomershine, and service was attempted at a new address. Id. Plaintiffs’
counsel served Defendant Unruh 107 days after the filing of their complaint.
The Court found Plaintiff showed good cause for the late service and agrees
Defendant was not prejudiced by this late service, and that judicial economy
would be served. Doc. 37. To the extent Defendant seeks dismissal based upon
untimely service, the Court should reject this challenge.
III. 	Plaintiffs’ 	federal 	claims 	survive 	Federal 	Rule 	of 	Civil
Procedure 12(b)(6).
A. 	Pleading standard.
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must only
plead “enough facts to state a claim to relief that is plausible on its face,”
“nudg[ing] their claims across the line from conceivable to plausible.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “There is a ‘low bar for surviving
a motion to dismiss,’ and ‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.’” Clinton v. Sec. Benefit Life Ins. Co., 63
F.4th 1264, 1276 (10th Cir. 2023) (first quoting Quintana v. Santa Fe Cnty. Bd.
of Comm’rs, 973 F.3d 1022, 1034 (10th Cir. 2020); then quoting Dias v. City &
County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)).
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“In reviewing a motion to dismiss, ‘all well-pleaded factual allegations in
the . . . complaint are accepted as true and viewed in the light most favorable
to 	the 	nonmoving 	party’”—here, 	Plaintiff. 	Brown 	v. 	Montoya, 	662
F.3d 1152, 1162 (10th Cir. 2011) (alteration in original) (quoting Moore v.
Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)). And “[g]enerally, a court
considers only the contents of the complaint when ruling on a 12(b)(6) motion.”
Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations,” Twombly, 550 U.S. at 555, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). “[T]he 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 or her.” Robbins v. Oklahoma, 519
F.3d 1242, 1250 (10th Cir. 2008).
Finally, the Court notes that “granting a motion to dismiss is a harsh
remedy which must be cautiously studied, not only to effectuate the spirit of
the liberal rules of pleading but also to protect the interests of justice.”
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Dias, 567 F.3d at 1178 (alterations omitted) (quoting Duran v. Carris, 238
F.3d 1268, 1270 (10th Cir. 2001)).
B. 	Plaintiffs 	have 	stated 	a 	plausible 	§ 	1983 	claim 	against
Defendant Unruh.
Defendant contends Plaintiffs failed in Count I to plausibly allege that
she violated Mr. May’s constitutional right to adequate medical care under the
Fourteenth Amendment. Doc. 38, at 10-17. The undersigned disagrees.
Due process entitles pretrial detainees to the same degree of adequate
medical care as convicted inmates under the Eighth Amendment. Lucas v.
Turn Key Health Clinics, LLC, 58 F.4th 1127, 1136 (10th Cir. 2023). An
official’s deliberate indifference to a detainee’s serious medical need violates
this right. Id.
The deliberate indifference standard 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) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Defendant Unruh
does not challenge the objective component of Plaintiffs’ claim, and the Tenth
Circuit has “held that ‘death [is], without doubt, sufficiently serious to meet
the 	objective 	component.’” 	Burke 	v. 	Regalado, 	935 	F.3d 	960, 	992 	(10th
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Cir. 2019) (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009));
see also Doc. 38, at 13.
The 	subjective 	component 	is 	satisfied 	if 	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 must 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 only that the
official “merely refused to verify underlying facts that [s]he strongly suspected
to be true, or declined to confirm inferences of risk that [s]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.
The 	Tenth 	Circuit 	recognizes 	two 	ways 	to 	establish 	the 	subjective
component of a deliberate indifference claim against an individual defendant:
[T]he subjective component can be satisfied under two theories:
failure to properly treat a serious medical condition (“failure to
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properly treat theory”) or as a gatekeeper who prevents an inmate
from receiving treatment or denies access to someone capable of
evaluating the inmate’s need for treatment (“gatekeeper theory”).
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. 	Even 	a 	brief 	delay 	in
treatment can be unconstitutional.
Id. (internal citations omitted). Plaintiffs state a plausible claim against
Defendant Unruh under either theory.
Beginning 	with 	failure 	to 	properly 	treat, 	Defendant 	Unruh
acknowledges 	Plaintiffs’ 	allegations 	that 	she 	failed 	to 	provide 	timely 	or
adequate medical or mental health treatment, which could have included
properly monitoring or supervising Mr. May’s care or ordering diagnostic
testing. Doc. 38, at 14. She maintains, though, that in her gatekeeper role she
had Mr. May seen by APRN Defendant Tamara Carey. Id. at 13. She arranged
this telemedicine visit with Defendant Carey after receiving reports from other
inmates that Mr. May was still not eating or showering. Id. at 13-14. And she
maintains Plaintiffs do not allege any specific acts or omissions to show she
was deliberately indifferent to Mr. May’s serious risk of dying from COVID-19.
Id. at 14.
Defendant Unruh characterizes Plaintiffs’ claim as arising from an
unsuccessful medical treatment or disagreement between a detainee and a
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medical 	provider, 	neither 	of 	which 	rises 	to 	the 	level 	of 	a 	constitutional
violation. Id. at 14 (first citing Redding v. Marsh, 750 F. Supp. 473, 479 (E.D.
Okla. 1990; then citing Olsen v. Stotts, 9 F.3d 1475 (10th Cir. 1993)).
The undersigned disagrees with this characterization. Plaintiffs do not
allege Defendant Unruh provided unsuccessful treatment or that she failed to
provide the correct medical care. Rather, they assert Defendant Unruh’s
referral 	for 	one 	telemedicine 	treatment 	was 	constitutionally 	inadequate,
amounting to a functional denial of medical care when his need for treatment
was obvious. Doc. 45, at 13. “[M]erely doing something (with no reference to
the underlying condition) does not necessarily insulate one from liability.
Instead, a court may need to determine whether there was the functional
equivalent of a complete denial of care in light of the specific circumstances.”
Lucas, 58 F.4th at 1139; see also Oxendine v. Kaplan, 241 F.3d 1272, 1277-79
& n.7 (10th Cir. 2001) (holding plaintiff’s allegations that doctor who ordered
daily infirmary visits, was aware of gangrenous black hand tissue for two
weeks, yet only prescribed Tylenol with codeine, were sufficient to “support[]
an inference that [doctor] knew about and disregarded a substantial risk to
[inmate’s] health”).
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Plaintiffs allege that Defendant Unruh was aware Mr. May suffered
from a host of medical conditions, including hypersensitivity lung disease,
COPD, diabetes mellitus, and Alzheimer’s, and that he had not showered or
eaten in seven days after his arrival at the Custer County Jail. Doc. 1, at 4-5.
During the February 3, 2022 telemedicine visit, APRN Carey generated a
“Chronic Care Note.” Id. at 6. APRN Carey documented that Mr. May suffered
from hypertension, hypersensitivity lung disease, COPD, diabetes mellitus,
rheumatoid arthritis and Alzheimer’s. Id. In the narrative position of the Note,
APRN Carey documented that “[p]er officer, pt has not eaten or showered in 7
days.” Id. APRN Carey additionally acknowledged her awareness of Mr. May’s
“worsening Alzheimer disease” and set up a follow-up visit in 90 days. Id.
On February 9, 2022, it was again documented that Mr. May was
continuing to refuse meals. Id. at 7-8. He also began audibly gasping for air
and showed shortness of breath. Id. Defendant Unruh did not call 911, or again
refer him to an ARPN or doctor. Mr. May’s condition deteriorated through
March 18, 2022, and Defendant Unruh took no action to address or alleviate
Mr. 	May’s 	emergent 	symptoms, 	that 	included 	incontinence, 	shortness 	of
breath, dangerously low blood pressure, and bed sores. Doc. 1, at 7, 8, 9;
Doc. 45, at 11-12.
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These allegations “do not amount to a differing opinion as to the course
of treatment, but a claim that [jail] medical staff ‘respond[ed] to an obvious
risk with treatment that is patently unreasonable.’” Smith v. Allbaugh, 987
F.3d 	905, 	911 	(10th 	Cir. 	2021) 	(alteration 	in 	original) 	(quoting 	Self 	v.
Crum, 439 F.3d 1227, 1232 (10th Cir. 2006)).
Should Defendant Carey’s “view prevail, every institutional doctor . . .
could shield themselves from constitutional liability by simply prescribing any
mild over-the-counter pain reliever, regardless of symptoms.” Lucas, 58 F.4th
at 1139. But “[s]uch a literal inquiry into whether there was a complete denial
of care is not the standard.” Id. Rather, “providing only some modicum of
treatment is not sufficient to absolve [jail medical providers] from liability for
potential deliberate indifference to [an inmate’s] serious medical concerns.”
Plunkett v. Armor Corr. Health Servs., Inc., 2022 WL 889962, at *6 (N.D. Okla.
Mar. 25, 2022); cf. Mata v. Saiz, 427 F.3d 745, 760-61 (10th Cir. 2005) (finding
allegations 	insufficient 	to 	establish 	deliberate 	indifference 	to 	plaintiff’s
medical needs because defendant “made a good faith effort to diagnose and
treat [plaintiff’s] medical condition”).
Defendant Unruh also contends Plaintiffs must show she had knowledge
that Mr. May faced a risk of imminent death from COVID-19. Doc. 38, at 13-17.
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But the Tenth Circuit has rejected the need for this level of specificity for
deliberate indifference claims. Instead, to establish a deliberate indifference
claim, a physician must be aware that the detainee “faced a substantial risk of
harm to her health and safety” but need not be “consciously aware [of] a specific
ailment.” See Lucas, 58 F.4th at 1141. Plaintiffs allege Defendant Unruh was
aware Mr. May suffered from several medical conditions. They have therefore
stated a plausible claim against 	Defendant Carey under the failure-to-treat
theory. See id.; see also Smith, 987 F.3d at 911.
Turning to the gatekeeper role, Defendant Unruh argues she “had Mr.
May seen” by APRN Carey for a visit the following day, acknowledging she had
the authority to order treatment, Doc. 38, at 13. An individual can act as both
medical provider and gatekeeper. See Lucas, 58 F.4th at 1143 (first citing
Mata, 427 F.3d at 1232; then citing Oxendine, 241 F.3d at 1278). Again,
Plaintiffs allege Defendant Unruh was aware Mr. May suffered from serious
medical conditions, had not eaten, and had intensifying Alzheimer’s disease.
Doc. 1, at 6. They also allege Defendant Unruh was aware of Mr. May’s
precipitous drop in blood pressure. Id. at 7-8. And they allege that Defendant
Unruh knew that from February 3 through March 18, 2022, Mr. May refused
all meals, had worsening shortness of breath, dangerously low blood pressure
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readings, had evident mental decline related to his Alzheimer’s and became
incontinent. Id. at 8-9. Accepting Plaintiffs’ allegations as true, Defendant
Unruh had a duty in this potentially emergent situation to act as gatekeeper
and refer Mr. May to a physician or similar medical official capable of more
directly evaluating and treating Mr. May’s condition. Instead, according to the
complaint, 	she 	took 	no 	action 	after 	scheduling 	a 	telemedicine 	visit 	on
February 2, 2022. Id. at 7-8.
Plaintiffs have stated a plausible claim that Defendant Unruh provided,
at best, “woefully inadequate treatment,” Smith, 987 F.3d at 911, and at worst,
the functional denial of care, Lucas, 58 F.4th at 1138-39. Although “discovery
may 	reveal 	contrary 	evidence,” 	“a 	definitive 	resolution 	is 	not 	the 	issue”
currently before this Court. Id. at 1143. Plaintiffs’ allegations allow for an
inference that as both provider and gatekeeper, Defendant Unruh consciously
disregarded serious 	risks to 	Mr. 	May’s health 	and 	safety. So Defendant
Unruh’s request to dismiss Plaintiffs’ deliberate indifference claim should be
denied.
IV. 	Defendant Unruh’s request for dismissal based on immunity
under the OGTCA is premature.
Defendant 	seeks 	dismissal 	of 	Plaintiffs’ state-law 	negligence 	claim,
relying largely on Barrios v. Haskell County Public Facilities Authority, 432
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P.3d 233 (Okla. 2018). Doc. 38, at 18-22. At this stage of the proceedings the
Court disagrees that Defendant is immune from liability under the OGTCA.
And so, the Court cannot conclude that Defendant Unruh is immune from
liability.
The OGTCA renders the State and its employees “immune from any tort
suit arising out of the provision, equipping, operation or maintenance of any
prison, jail or correctional facility.” Barrios, 432 P.3d at 235 (alteration and
internal quotations omitted). The Oklahoma Supreme Court, answering a
different question, noted, “We have not been asked whether Turn Key Health,
LLC or its staff are ‘employees’ under [the OGTCA], but have assumed they
are for purposes of answering the questions certified to us.” Id. at 236 n.5.
Oklahoma law remains unsettled as to whether the OGTCA applies to
third-party contractors such as Defendant Turn Key. Compare Est. of Sanders
v. Turn Key Health Clinics, LLC, No. 121,589, slip op. at 4-8 (Okla. Civ. App.
March 	1, 	2024) 	(explaining 	that 	while 	the 	OGTCA 	grants 	immunity 	to
“licensed medical professionals under contract” with county entities “who
provide medical care to inmates or detainees,” this immunity only extends to
licensed individuals—“not private corporate entities such as Turn Key”—and
noting the “assumption in Barrios is not precedent”), cert. granted (Okla.
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June 3, 2024), with Martin v. Bd. of Cnty. Comm’rs, No. 120,422, slip op.
at 9-10 (Okla. Civ. App. Feb. 27, 2024) (relying on Barrios to affirm a trial
court’s determination that a private contractor providing medical services to a
county jail is immune under the OGTCA from torts arising from its provision
of services, but not addressing the Barrios court’s assumption), cert. denied
(Okla. June 3, 2024).
“[W]ithout further guidance from Oklahoma courts,” the proper route is
to make such determinations “at the summary judgment stage if the factual
record is sufficiently developed and the facts are uncontroverted.” Lucas, 58
F.4th at 1148; see also Bond v. Regalado, 2023 WL 	7014047, at *3 (10th Cir.
Oct. 25, 2023) (referencing Lucas to explain it was premature, at motion to
dismiss stage, for district court to rely on Barrios to determine without further
analysis that a jail’s third-party medical contractor employees were immune
from state-law negligence under the OGTCA). Two unpublished, conflicting
opinions do not constitute “further guidance.” Based on the reasoning of Lucas
and Bond, the undersigned finds Defendant’s request to dismiss Plaintiffs’
state law negligence claim should be denied.
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V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
deny Defendant Unruh’s motion to dismiss in its entirety. Doc. 38.
The undersigned advises Defendant of her right to file an objection to
this report and recommendation with the Clerk of this Court on or before
August 14, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure 72(b)(2). The undersigned further advises Defendant that
failure to make a timely objection to this report and recommendation waives
the right to appellate review of both factual and legal questions contained
herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation does not terminate the referral to the
undersigned Magistrate Judge in this matter.
ENTERED this 31st day of July, 2024.
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