Barrick v. Kasbaum et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
BARBARA BARRICK, as Special 	)
Administrator of the ESTATE OF 	)
BOBBY DALE BARRICK, deceased, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-23-129-JFH-GLJ
)
BOARD OF COUNTY 	)
COMMISSIONERS OF MCCURTAIN 	)
COUNTY, OKLAHOMA; 	)
MCCURTAIN COUNTY SHERRIFF 	)
KEVIN CLARDY; MATTHEW 	)
KASBAUM; QUENTIN LEE; 	)
KEVIN STOREY ; MARK HANNAH, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Before the Court is Defendant Board of County Commissioners of McCurtain
County’s Motion to Dismiss and Brief in Support (“Motion to Dismiss”) [Docket No. 22].
Plaintiff, Barbara Barrick, as Special Administrator of the Estate of Bobby Dale Barrick,
brought this civil rights action pursuant to 41 U.S.C § 1983. On September 5, 2023, the
Court referred this case to the undersigned Magistrate Judge for all further proceedings in
accordance with jurisdiction pursuant to 28 U.S.C. § 636 [Docket No. 41]. Defendant,
Board of County Commissioners of McCurtain County, Oklahoma, now moves this Court
to dismiss the claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). For
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the reasons stated below, the undersigned Magistrate Judge recommends that the Motion
to Dismiss be GRANTED.
BACKGROUND
Plaintiff filed her Complaint on April 20, 2023, against the Board of County
Commissioners of McCurtain County, Oklahoma (“McCurtain BOCC”), and McCurtain
County Sheriff Kevin Clardy (“MCS”), in his official capacity, as well as Deputy Matthew
Kasbaum, Deputy Quentin Lee, Deputy Kevin Storey, and Warden Mark Hannah, all in
their individual capacities. See Docket No. 2. Plaintiff alleges a total of three causes of
action, all of which stem from the death of Bobby Dale Barrick following an altercation
with law enforcement. Id. Plaintiff alleges two causes of action against Defendants
Kasbaum, Lee, Storey, and Hannah for their use of excessive force and failure to
intervene/stop the use of excessive force against Mr. Barrick Id. at ¶¶ 65-100. The last
cause 	of 	action 	alleges 	Monell 	liability 	against 	McCurtain 	BOCC 	and 	MCS 	for
constitutional violations. Id. at ¶ 101. McCurtain BOCC now moves to dismiss the claim
against it in the Complaint asserting that the claim is duplicative of the claim against MCS.
See Docket No. 22. For the reasons set forth below, the undersigned Magistrate Judge
recommends that the claims against McCurtain BOCC be dismissed.
ANALYSIS
“In considering a Rule 12(b)(6) motion, the court must accept all well-pleaded
allegations of the complaint as true and must construe them in the light most favorable to
the plaintiff.” Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284
(10th Cir. 2008). “To survive a motion to dismiss under rule 12(b)(6), a complaint must
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contain ‘enough facts to state a claim to relief that is plausible on its face.’” Schrock v.
Wyeth, Inc., 727 F.3d 1272, 1280 (10th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2006)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While the
12(b)(6) standard does not require that Plaintiff establish a prima facie case in [her]
complaint, the elements of each alleged cause of action help to determine whether Plaintiff
has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.
2012). This requires a determination as to “whether the complaint sufficiently alleges facts
supporting all the elements necessary to establish an entitlement to relief under the legal
theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)).
I. 	MCCURTAIN BOCC’S MOTION TO DISMISS
Plaintiff’s Complaint asserts one cause of action against both McCurtain County
Board of County Commissioners and McCurtain County Sheriff Kevin Clardy, in his
official capacity, for constitutional violations raised pursuant to 42 U.S.C. § 1983.
Defendants contend that the claim against McCurtain BOCC should be dismissed as being
entirely duplicative of the claim against MCS. See Docket No. 22, p. 3. Plaintiff responds
in opposition that McCurtain BOCC is a properly named Defendant and, as such, should
not be dismissed. Docket No. 39, pp. 4-7. Upon review of the relevant case law, the Court
agrees that Plaintiff’s claim against McCurtain BOCC and Sheriff McClardy in his official
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capacity are duplicative, and that McCurtain BOCC should be dismissed as a duplicative
party.
“[A] section 1983 suit against a municipality and a suit against a municipal official
acting in his or her official capacity are the same.” Stuart v. Jackson, 24 F. App’x 943, 956
(10th Cir. 2001) (quoting Myers v. Okla. Cnty. Bd. Of Cnty. Commr’s, 151 F.3d 1313, 1316
n.2 (10th Cir. 1998); Ky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits
[are] . . . in all respects other than name, to be treated as a suit against the entity. It is not a
suit against the official personally, for the real party in interest is the entity.”) (internal
citations omitted). Moreover, under 19 Okla. Stat. § 4, as amended in 2019, “the correct
means by which to name a county as a defendant in an action involving § 1983 claims . . .
is to name the appropriate county officer in his or her official capacity, not the Board.”
Kirkendall-Heller v. Bd. of Commr’s, 2021 WL 2371348, *1 (W.D. Okla. 2021) (emphasis
added); 19 Okla. Stat. § 4 (“Suit may be brought against a county by naming a county
officer . . . when it is alleged that such officer in his or her official capacity is directly or
vicariously liable to plaintiff in an action not arising out of contract.”).
Plaintiff requests that, to the extent her claims against McCurtain BOCC and MCS
are duplicative, the Court treat McCurtain BOCC and MCS as “one and the same”
defendant and permit the claims against both to proceed in this lawsuit. See Docket No. 39,
p. 7.1 In support, Plaintiff cites an unpublished Order issued in this District Court in Lynch
1 In support of this assertion, Plaintiff notes that in McFadden v. Tulsa County Board of
County Commissioners, 2016 WL 6902182 (N.D. Okla. 	Nov. 23, 2016) the Northern
District of Oklahoma permitted both the Tulsa County Sheriff and the Tulsa County Board
of County Commissioners to remain in the suit and treated these defendants as “one and
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v. Board of County Commissioners of Muscogee County, Oklahoma, 16-cv-247-JFP,
Docket No. 60, pp. 4-6 (E.D. Okla. March 31, 2017), where this Court denied a motion to
dismiss Muskogee BOCC upon finding the Board was properly named as a party.
Importantly, this decision was issued prior to the Oklahoma statutory amendment, and this
issue is distinguishable from the issue of whether McCurtain BOCC and the Sheriff are
duplicative parties.
Dismissal of the superfluous claim against McCurtain BOCC is thus warranted here
for the sake of judicial economy and efficiency. See Foreman v. Okla. Cnty. Sheriff, *4-5,
2022 WL 2513384, *2 (W.D. Okla. July 6, 2022) (dismissing, without prejudice, claims
against Board of County Commissioners for Oklahoma County as duplicative); Hayes v.
Owen, 2023 WL 2716579, *6 (N.D. Okla. Mar. 30, 2023) (“The Court agrees with the
Board that plaintiffs’ claims against the Board are redundant with its claims against Sheriff
Owen in his official capacity.”). As a matter of judicial economy, the undersigned
Magistrate Judge thus recommends that the claim against McCurtain BOCC be dismissed
without prejudice.
II. 	LEAVE TO AMEND
Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave. The court
the same.” However, there, neither the Tulsa County Sheriff nor the Tulsa County BOCC
requested dismissal based on the redundancy of the claims, instead requesting to be treated
as “one and the same.” McFadden, 2016 WL 6902192, at *7. (“[Sheriff] Glanz and BOCC
request the Court treat all ‘official capacity’ claims against Glanz as the equivalent of
claims against the county.”).
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should freely give leave when justice so requires.” FED. R. C IV. P. 15(a)(2). However, “[a]
proposed amendment is futile if the complaint, as amended, would be subject to dismissal.”
Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004). Defendant McCurtain BOCC
contends that amendment is futile because the claims against McCurtain BOCC are
duplicative of the claims against Sheriff Clardy, and the undersigned Magistrate Judge
agrees. Accordingly, the claim against McCurtain BOCC should be dismissed without
granting Plaintiff leave to amend.
CONCLUSION
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Defendant Board of County Commissioners’ Motion to Dismiss and Brief in Support
[Docket No. 22] be GRANTED. Any objections to this Report and Recommendation must
be filed within fourteen days. See 18 U.S.C. § 636(b)(1); FED. R. C IV. P. 72(b). Any
objections and response shall each be limited to 10 pages and a reply is permitted only with
leave of court upon a showing of good cause.
IT IS SO ORDERED this 25th day of September 2023.
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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