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
Defendants Turn Key Health Clinics, LLC (“Turn Key”) and Tamara
Carey, 	Advanced 	Practice 	Registered 	Nurse 	(“APRN”) 	(together,
“Defendants”), seek dismissal of Plaintiffs’ claims. Docs. 14, 22.1 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. Defendants argue 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 Defendants are immune from
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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suit under the Oklahoma Governmental Tort Claims Act (“OGTCA”), O KLA .
STAT . tit. 51, §§ 151-258. Docs. 14, 22. The undersigned recommends the Court
deny Defendants’ motions 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 Stacia Unruh, a Licensed Practical Nurse (“LPN”),
and Defendant Julie Warnke, a detention officer. Id. at 5. In 2021 and 2022,
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the Oklahoma State Department of Health cited the Custer County Sheriff’s
Office for repeated violations of Oklahoma’s 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 took no further action beyond scheduling 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
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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
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.
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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
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, 22.3
2 	In her motion, Defendant Carey requests dismissal of Plaintiffs’ state-
law claim of negligence. Doc. 22, at 18-23. This issue is moot, though, because
Plaintiffs did not assert a negligence claim against Defendant Carey. Doc. 1,
at 40-41; Doc. 28, at 15.
3 	Defendants Warnke and the Custer County Sheriff filed Answers to
Plaintiffs’ Complaint. Doc. 17, 18. Defendant Unruh filed a motion to dismiss
that is not yet at issue. Doc. 38.
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II. 	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)).
“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).
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“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.”
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 Carey.
Defendant Carey 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. 22, at 11-18. 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.
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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 Carey
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
Cir. 2019) (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009));
see also Doc. 22, 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
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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
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 Carey under either theory.
Beginning with failure to properly treat, Defendant Carey acknowledges
Plaintiffs’ allegations that she failed to provide timely or adequate medical or
mental health treatment, which could have included properly monitoring or
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supervising Mr. May’s care or ordering diagnostic testing. Doc. 22, at 14-15.
And she concedes that when she saw Mr. May on February 3, 2022, she was
“capable of ordering treatment and medication if she believed it medically
necessary.” Id. at 14. Instead, Defendant Carey asserts that her actions during
the telemedicine visit—observing and documenting Mr. May’s symptoms—
negate Plaintiffs’ claim. Id. at 17. She characterizes Plaintiffs’ claim as arising
from an unsuccessful medical treatment or disagreement between a detainee
and a medical provider, neither of which rises to the level of a constitutional
violation. Id. at 15 (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 Carey provided unsuccessful treatment or that she failed to
provide 	the 	correct 	medical 	care. 	Rather, 	they 	assert 	Defendant 	Carey’s
telemedicine 	treatment 	was 	constitutionally 	inadequate, 	amounting 	to 	a
functional denial of medical care when his need for treatment was obvious.
Doc. 1, at 36-37. “[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;
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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”).
Plaintiffs allege that on or before February 3, 2022, Defendant Carey
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. Doc. 1, at 6. In light of Mr.
May’s hypersensitivity lung disease, diabetes, and decreasing mental capacity,
Defendant Carey knew or should have known that Mr. May’s health was at
serious 	risk. 	Rather 	than 	taking 	any 	action 	to 	address 	or 	alleviate 	his
symptoms, ordering tests, or referring Mr. May to a physician, Defendant
Carey merely documented his symptoms and scheduled a follow up for ninety
days later. Id. 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)).
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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 Carey also contends Plaintiffs must show she had knowledge
that Mr. May faced a risk of imminent death from COVID-19. Doc. 22, at 13-14;
Doc. 29, at 7-8. 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
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Defendant Carey 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 Carey acknowledges she had
the 	authority 	to 	order 	treatment, 	Doc. 	22, 	at 	14, 	which 	would 	include
scheduling Mr. May for a physician evaluation. 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 Carey was aware Mr. May suffered from serious
medical 	conditions, 	had 	not 	eaten 	in 	seven 	days, 	and 	had 	intensifying
Alzheimer’s disease. Accepting Plaintiffs’ allegations as true, Defendant Carey
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 except to schedule a telemedicine follow-up for
three months later.
Plaintiffs have stated a plausible claim that Defendant Carey 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
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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 Carey consciously
disregarded serious risks to Mr. May’s health and safety. So Defendant Carey’s
request to dismiss Plaintiffs’ deliberate indifference claim should be denied.
C. 	Plaintiffs 	have 	stated 	a 	plausible 	§ 	1983 	claim 	against
Defendant Turn Key.
Fundamental to any action under 42 U.S.C. § 1983 is that the defendant
was acting under color of state law. McCarty v. City of Bartlesville, 8 F.
App’x 867, 873 (10th Cir. 2001). A municipality is “included among those
persons to whom § 1983 applies,” Monell v. Dep’t of Soc. Servs. of N.Y., 436
U.S. 658, 690-91 (1978), and 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).
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
a constitutional injury, and (3) that the municipality acted with deliberate
indifference. Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1048-51 (10th
Cir. 2022). “A core principle of Monell liability is that municipal entities are
liable for only their own actions and not vicariously liable for the actions of
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their employees.” Crowson v. Washington County, 983 F.3d 1166, 1191 (10th
Cir. 2020). But “[b]ecause municipalities act through officers, ordinarily there
will be a municipal violation only where an individual officer commits a
constitutional violation.” Id. So municipal liability arises when an individual
defendant violates an inmate’s rights while aligning with an official municipal
policy or custom.
There is also a “limited exception to the requirement of individual
unconstitutional action.” Buchanan v. Turn Key Health Clinics, LLC, 2023
WL 6997404, at *7 (10th Cir. Oct. 24, 2023) (quotations omitted). “[W]hen a
municipal-liability claim is premised on the municipality’s ‘systemic failure[s],’
no single individual defendant need be found liable. Rather, ‘the combined acts
or omissions of several employees acting under a governmental policy or
custom may violate an individual’s constitutional rights.’” Johnson v. Davis
County, 	2022 	WL 	830202, 	at 	*3 	(10th 	Cir. 	March 21, 2022) 	(quoting
Crowson, 983 	F.3d 	at 	1186). 	Plaintiffs 	claim 	that 	individual 	Defendants,
Unruh, Carey, and Warnke violated Mr. May’s constitutional rights because of
Defendant Turn Key’s policy or customs and that a systemic failure resulted
in the constitutional violations.
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Defendant Turn Key preliminarily argues Plaintiffs have not sufficiently
alleged 	an 	underlying 	constitutional 	violation. 	Doc. 	14, 	at 	11-15. 	The
undersigned 	has 	already 	concluded 	Plaintiffs 	successfully 	pleaded 	a
Fourteenth Amendment claim against Defendant Carey, so the Court should
not grant Defendant Turn Key’s motion to dismiss on that basis.
As set forth below, Plaintiffs have sufficiently alleged municipal liability
based on systemic failure.
1. 	Policy or custom.
“[I]n 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., 2018 WL 4323917,
at *2 (E.D. Okla. Sept. 10, 2018). Plaintiffs claim that Defendant Turn Key
prioritizes cost-saving over detainee medical care, maintaining policies and
practices of inadequately staffing county jails—including the Custer County
Jail—with undertrained, underqualified, and unsupervised medical personnel
who are ill-equipped to evaluate, assess, supervise, monitor, or treat inmates.
In support of their claim, they allege the following:
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• 	Under its contract, Turn Key was responsible for the costs of
all pharmaceuticals at the Custer County Jail per year up to
a set amount, after which Custer County was responsible;
• 	Turn 	Key 	was 	responsible 	for 	the 	costs 	of 	all 	inmate
hospitalizations and off-site medical care provided to the
Custer County Jail detainees per year up to a set amount,
after which Custer County was responsible;
• 	These provisions create a dual financial incentive to under-
prescribe (and under-administer) medications and to keep
detainees at the Custer County Jail to avoid off-site medical
costs;
• 	Turn Key had an established policy or custom of not testing
detainees 	for 	COVID-19, 	even 	when 	a 	test 	was 	clearly
required, to avoid the significant costs of outside medical
treatments in the event of an outbreak;
• 	Turn Key had no policy and provided no guidance to its
medical staff about the appropriate standards of care for
detainees with complex or serious medical needs;
• 	Turn Key did not provide an on-site physician, psychiatrist,
psychologist, or RN at the Custer County Jail;
• 	Turn Key provided only an on-site LPN who was not licensed
to diagnose or treat serious medical conditions;
• 	Turn 	Key 	employed 	a 	very 	small 	number 	of 	mid-level
providers, 	including 	physician 	assistants, 	nurse
practitioners or APRNs, and physicians, as roving providers
who 	work 	at 	numerous 	facilities 	across 	Oklahoma,
Arkansas, and Kansas, a policy or practice resulting in a
chronic shortage of providers; and,
• 	Turn Key’s Medical Director maintained a corporate policy
of intentionally omitting information about detainees’ and
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inmates’ 	negative 	health 	outcomes 	from 	written
documentation, ordering Turn Key personnel to keep such
information out of written communication.
Doc. 1, at 5, 11-13, 31-33. Courts have found even less specific policy allegations
sufficient to support the policy element of a municipal liability claim against
third-party 	medical 	providers. 	E.g., 	Prince 	v. 	Turn 	Key 	Health 	Clinics,
LLC, 2019 WL 238153, at *5 (N.D. Okla. Jan. 16, 2019) (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 [the
jail] from receiving adequate medical care” was “minimally sufficient” to
establish a relevant policy or custom for purposes of municipal liability); see
also White v. Bowling, 2023 WL 3359626 (N.D. Okla. May 10, 2023) (finding
plaintiff’s allegations minimally sufficient where they asserted “Turn Key
employs only one doctor for all of its Oklahoma facilities and plaintiff cites
instances of allegedly inadequate care at the Jail and other Oklahoma Turn
Key facilities involving Turn Key personnel,” explaining claim based on cost-
cutting measures alone would have been insufficient).
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The undersigned finds Plaintiffs—having described specific cost-cutting
policies and their incentives—plausibly alleged the policy or custom element of
a Monell claim.
2. 	Causation.
“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)
(quoting Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770
(10th Cir. 2013)). The policy or custom must be “the moving force behind the
injury alleged.” Schneider, 717 F.3d at 770 (10th Cir. 2013) (quoting Bd. of
Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997)).
Plaintiffs allege Mr. May’s death resulted from Defendant Turn Key’s
financial incentives to maintain deficient staffing and provide less care overall.
These allegations support an inference that Turn Key’s custom or policy of
inadequately funding its health care system, understaffing its facilities, and
providing insufficient guidance or supervision for the untrained or lower-level
medical staff on site caused the alleged violation of Mr. May’s right to adequate
medical care. See White, 2023 WL 3359626, at * 5.
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The undersigned finds Plaintiffs plausibly alleged the causation element
of a Monell claim.
3. 	Deliberate indifference.
Finally, “[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, 935 F.3d at 997-98
(quoting Hollingsworth v. Hill, 110 F.3d 733, 745 (10th Cir. 1997)). “In the
municipal liability context, deliberate indifference is an objective standard
which is 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).
Here, a factfinder could reasonably determine that Defendant Turn
Key’s lack of qualified on-site medical personnel, as well as lack of protocol for
the assessment, monitoring, and care of inmates with complex or serious
medical needs, would frequently lead to a failure to properly recognize and
respond to life-threatening conditions. Defendant Turn Key’s policies “fail[ed]
to ensure that any single officer was positioned to prevent” constitutionally
inadequate 	medical 	care. 	Crowson, 	983 	F.3d 	at 	1191; 	see 	also 	Lance 	v.
Morris, 985 F.3d 787, 803 (10th Cir. 2021) (“[A] factfinder could reasonably
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determine that the jail guards’ lack of training would frequently lead to
disregard of serious pain complaints, violating detainees’ constitutional right
to medical care.”).
The 	“deliberate 	indifference 	standard 	may 	be 	satisfied 	when 	the
municipality has actual or constructive notice that its action or failure to act is
substantially certain to result in a constitutional violation, and it consciously
or deliberately chooses to disregard the risk of harm.” Barney, 143 F.3d at 1307
(citing Brown, 520 U.S. at 407-08); see also Johnson, 2022 WL 830202, at *4.
“In most instances, notice can be established by proving the existence of a
pattern of tortious conduct.” Barney, 143 F.3d at 1307.
Defendant Turn Key’s alleged corporate policy of omitting information
about inmates’ negative health outcomes from written communication, Doc. 1,
at 33, evidences a direct awareness of risks to inmates’ health and efforts to
hide 	them. 	As 	well, 	Plaintiffs 	specifically 	identify 	sixteen 	incidents
between 2014 and 2021 in which—as in Mr. May’s case—Turn Key staff failed
to assess or treat an inmate’s dire symptoms that eventually seriously injured
or killed an inmate. Id. at 13-31. These incidents provide an inference that
Defendant Turn Key knew or should have known that its cost-saving and
understaffing policies were inadequate and dangerous.
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The 	undersigned 	finds 	Plaintiffs 	plausibly 	alleged 	the 	deliberate
indifference 	element 	of 	a 	Monell 	claim. 	Plaintiffs 	plead 	facts 	showing
Defendant 	Turn 	Key 	was 	on 	notice 	that 	its 	policies 	and 	customs 	posed
significant 	health 	risks 	to 	inmates 	and 	showing 	Defendant 	Turn 	Key
consciously or deliberately chose to disregard that risk of harm.
III. 	Defendant Turn Key’s request for dismissal based on immunity
under the OGTCA is premature.
Defendant Turn Key seeks dismissal of Plaintiffs’ state-law negligence
claim, 	relying 	largely 	on 	Barrios 	v. 	Haskell 	County 	Public 	Facilities
Authority, 432 P.3d 233 (Okla. 2018). Doc. 14, at 29-37. At this stage of the
proceedings, the Court disagrees that Defendant Turn Key is immune from
liability under the OGTCA.
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.
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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.
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
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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 Turn Key’s request to dismiss
Plaintiffs’ state law negligence claim should be denied.
IV. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
deny Defendants Carey’s and Turn Key’s motions to dismiss in their entirety.
Docs. 14, 22.
The undersigned advises Defendants of their right to file an objection to
this report and recommendation with the Clerk of this Court on or before
July 12, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure 72(b)(2). The undersigned further advises Defendants 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.
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ENTERED this 28th day of June, 2024.
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