Campbell v. Oklahoma County Detention Center et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL A. CAMPBELL, )
)
Plaintiff, )
)
v. ) Case No. CIV-22-399-R
)
WILLIAM MONDAY et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Michael A. Campbell, appearing
pro se and
in forma pauperis, brings this
action under 42 U.S.C. § 1983, alleging civil rights violations. (ECF No. 25). Currently
before the Court are two Motions to Dismiss filed by Defendants Monday, Williams, and
the Oklahoma County Criminal Justice Authority (OCCJA), which have been responded to
by Mr. Campbell. (ECF Nos. 60, 61, 68, & 69). Following the Court’s prior ruling, the
following claims remain against these Defendants: (1) claims for deliberate indifference
in violation of the Fourteenth Amendment against the OCCJA and Defendants Monday
and Williams in their individual capacities for monetary damages and in their official
capacities for injunctive relief and (2) claims for negligence under Oklahoma state law
against Defendants Monday and Williams.
See ECF Nos. 64:13, n. 14 & 71.
Following a review of the Motions to Dismiss and Plaintiff’s responses, the Court
should: (1) dismiss the official capacity claims against Defendants Monday and Williams
as legally redundant and based on Plaintiff’s wish to dismiss said claims; (2) quash the
original service attempt on Defendants Monday and Williams in their individual capacity
claims; (3) allow Mr. Campbell 30 days to effectuate proper service on Defendants
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 1 of 17

2
Monday and Williams in their individual capacities or risk dismissal of the claims against
these Defendants; (4) conclude that Plaintiff has stated a claim against the OCCJA under
a theory of municipal liability for deliberate indifference to Plaintiff’s serious medical needs
in violation of the Fourteenth Amendment; and (5) make no finding on Plaintiff’s state
law negligence claims at this time.
I. STANDARD OF REVIEW FOR MOTIONS TO DISMISS
In ruling on Defendants’ motions, the court “must accept all the well-pleaded
allegations of the complaint as true and must construe them in the light most favorable
to . . . [P]laintiff.”
Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014) (citation
omitted). To survive dismissal, Plaintiff's “complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Plausible” in this context does not
mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of conduct,” then the plaintiff
has not “nudged (his) claims across the line from conceivable to plausible.”
Bell Atlantic
v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to
weed out claims that do not (in the absence of additional allegations) have a reasonable
prospect of success, but also to inform the defendants of the actual grounds of the claim
against them.”
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). “The
plausibility standard is not akin to a probability requirement, but it asks for more than a
sheer possibility. . . .”
Iqbal, 556 U.S. at 662 (internal quotation marks and citation
omitted).
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 2 of 17

3
A complaint fails to state a claim 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, 550 U.S. at 555. (footnote
and citation omitted). Bare legal conclusions in a complaint are not assumed to be true;
legal conclusions “must be supported by factual allegations” to state a claim upon which
relief may be granted.
Iqbal, 556 U.S. at 662.
“[A] pro se plaintiff requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if the court is to determine
whether he makes out a claim on which relief can be granted.”
Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). 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;
see also Gee v. Pacheco, 627
F.3d 1178, 1184-85 (10th Cir. 2010) (discussing
Iqbal).
II. THE MOTION TO DISMISS FILED BY DEFENDANTS OCCJA AND MONDAY
AND WILLIAMS IN THEIR OFFICIAL CAPACITIES
Defendants OCCJA, Monday, and Williams, in their official capacities, have filed a
Motion to Dismiss, arguing three theories: (1) improper service; (2) redundancy of claims
against the OCCJA and Defendants Monday and Williams in their official capacities; and
(3) failure to state a claim for violation of the Fourteenth Amendment. (ECF No. 60). The
Court should: (1) dismiss the claims against Defendants Monday and Williams in their
official capacities as redundant and based on Plaintiff’s request to dismiss the same; (2)
conclude that Defendant OCCJA was properly served; and (3) conclude that Plaintiff has
stated a claim against Defendant OCCJA for deliberate indifference to Plaintiff’s serious
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 3 of 17

4
medical needs in violation of the Fourteenth Amendment based on a theory of municipal
liability.
A. Redundancy of Claims/Plaintiff’s Response
Claims brought against individual municipal employees sued in their official
capacities are considered to be claims for municipal liability against the county; therefore,
the results of suing the individual defendants in their official capacities are the same as
suing the county.
Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (“Suing individual
defendants in their official capacities under § 1983 ... is essentially another way of
pleading an action against the county or municipality they represent.”);
Martinez v.
Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (“To the extent [plaintiff] brings a claim
against [the sheriff] in his official capacity, it is the same as bringing a suit against the
county.”);
see also Kentucky v. Graham, 473 U.S. 159, 165-66, 167, n. 14 (1985) (holding
that an official capacity “suit is, in all respects other than name, to be treated as a suit
against the entity;” holding that “[t]here is no longer a need to bring official-capacity
actions against local government officials [because] local government units can be sued
directly”).
Plaintiff has asserted municipal liability claims against Oklahoma County by suing
the OCCJA. Thus, Mr. Campbell’s official capacity claims against Defendants Monday and
Williams, former Oklahoma County employees, should be dismissed as redundant.
See
Parks v. Board of Cnty. Commissioners of Oklahoma Cnty., No. CIV-20-205-D, 2021 WL
9274560, at *3–4 (W.D. Okla. Apr. 23, 2021) (dismissing official capacity claims against
county officials as redundant when a claim for municipal liability against the county
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 4 of 17

5
exists); E
spinosa Hernandez v. Bd. of Cty. Commissioners of Oklahoma Cty., 2019 WL
3069430, at *2 (W.D. Okla. July 12, 2019) (“Plaintiff sued both the Board of County
Commissioners and Sheriff Whetsel in his official capacity.... [T]he official capacity claim
against Defendant Whetsel is a claim against Oklahoma County, and therefore is
redundant.”). Furthermore, in his response, Mr. Campbell states that he “elects[s] to drop
his “Official capacity” claims against Defendant Williams and Monday.” (ECF No. 68:2).
Accordingly, and based on either the Defendants’ theory or Plaintiff’s request, the Court
should dismiss the official capacity claims against Defendants Monday and Williams.
B. Service
With the forgoing recommendation, and as is pertinent to this Motion to Dismiss
(ECF No. 60), the sole remaining Defendant is the OCCJA, which argues that dismissal is
appropriate due to improper service.
See ECF No. 60:2-3. The Court should reject this
argument, based on statements in Defendant OCCJA’s own motion.
Defendant OCCJA identifies as a “public trust and a political subdivision of the
State of Oklahoma.” (ECF No. 60:2) (citing 51 O.S. § 152(11)(d); 60 O.S. § 176, et seq.).
Accordingly, the OCCJA rightfully argues that service is governed by Federal Rule of Civil
Procedure 4(j)(2), which provides:
(2) State or Local Government. A state, a municipal corporation, or any
other state-created governmental organization that is subject to suit must
be served by:
(A) delivering a copy of the summons and of the complaint to its
chief executive officer; or
(B) serving a copy of each in the manner prescribed by that state's
law for serving a summons or like process on such a defendant.
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 5 of 17

6
Oklahoma law, in turn, provides that a public trust must be served “by delivering a copy
of the summons and of the petition to . . . the chief executive officer or a clerk, secretary
or other official whose duty it is to maintain the official records of the organization.” 12
O.S. § 2004(C)(1)(c)(5).
The return of summons executed on the OCCJA states that Tony Towery, Chief of
Operations, accepted service on behalf of the OCCJA.
See ECF No. 57. According to the
OCCJA, “Mr. Towery is the official whose duty it is to maintain the official records of the
OCCJA.” (ECF No. 60:3). Thus, service on the OCCJA, through Mr. Towery, was
considered proper under Federal Rule of Civil Procedure 4(j)(2) and 12 O.S. §
2004(C)(1)(c)(5).
C. Deliberate Indifference
The sole claim remaining against the OCCJA is Plaintiff’s claim for deliberate
indifference to his serious medical needs in violation of the Fourteenth Amendment based
on a theory of municipal liability.
See ECF No. 25:10-11, 13. The OCCJA argues that
Plaintiff has failed to allege facts which would state a plausible municipal liability claim
under the Fourteenth Amendment. (ECF No. 60:4-11). The Court should disagree.
1. Standard for Municipal Liability
In
Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978), the
Supreme Court explained that a municipality or other local government unit may not be
held liable under § 1983 solely because it employs a tortfeasor.
Monell v. New York City
Dept. of Social Servs., 436 U.S. 658, 691 (1978). Rather, “to prove a § 1983 claim against
a municipality, a plaintiff must show the existence of a municipal policy or custom which
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 6 of 17

7
directly caused the alleged injury.”
Pyle v. Woods, 874 F.3d 1257, 1266 (10th Cir. 2017)
(citing
City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)). Additionally, a plaintiff
must “show that the policy was enacted or maintained with deliberate indifference to an
almost inevitable constitutional injury.”
Schneider v. City of Grand Junction Police Dep't,
717 F.3d 760, 769 (10th Cir. 2013) (citing
Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v.
Brown, 520 U.S. 397, 403 (1997);
City of Canton, 489 U.S. at 389). Accordingly, to prevail
on a § 1983 claim against municipal defendants, “the plaintiff must prove ‘(1) official
policy or custom, (2) causation, and (3) state of mind.’ ”
Burke v. Regalado, 935 F.3d
960, 998 (10th Cir. 2019) (bracket omitted) (quoting
Schneider, 717 F.3d at 769).
a. Official Policy or Custom
To establish a claim under § 1983, a plaintiff must first identify an official policy or
custom of the municipality, whether enacted or maintained by its legislative body or an
authorized decisionmaker.
Schneider, 717 F.3d at 769-70. A plaintiff must demonstrate
the existence of a “municipal policy or custom” in one of the following forms:
(1) a formal regulation or policy statement; (2) an informal custom
amounting to a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well
settled as to constitute a custom or usage with the force of law; (3) the
decisions of employees with final policymaking authority; (4) the
ratification by such final policymakers of the decisions – and the basis
for them – of subordinates to whom authority was delegated subject
to these policymakers’ review and approval; or (5) the failure to
adequately train or supervise employees, so long as that failure results
from deliberate indifference to the injuries that may be caused.
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 7 of 17

8
b. Causation
After identifying such an official policy or custom, the plaintiff must then establish
that the policy or custom either: (1) directly violated a federal right of the plaintiff, or (2)
was the “moving force” behind a county employee’s violation of a federal right of the
plaintiff.
Hinkle v. Beckham Cnty. Bd. of Cnty. Comm'rs, 962 F.3d 1204, 1240 (10th Cir.
2020). “Where a plaintiff claims that the municipality has not directly inflicted an injury,
but nonetheless has caused an employee to do so, rigorous standards of culpability and
causation must be applied to ensure that the municipality is not held liable solely for the
actions of its employee.”
Id. at 1241.
c. State of Mind
Finally, Plaintiff must prove that the municipal action was taken with deliberate
indifference to its known or obvious consequences.
Id. “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.”
Waller v. City & Cnty.
of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) (citation omitted). “While typically notice
is ‘established by proving the existence of a pattern of tortious conduct,’ it can also be
established ‘in a narrow range of circumstances where a violation of federal rights is a
highly predictable or plainly obvious consequence of a municipality’s action or inaction.’ ”
Hinkle, 962 F.3d at 1241 (quoting
Waller, 932 F.3d at 1284).
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 8 of 17

9
2. Plaintiff’s Deliberate Indifference Claim Against the OCCJA
Previously, the Court concluded that Mr. Campbell had stated a claim against
Defendant Capehart, in his individual capacity, for delaying and denying Plaintiff’s pain
medication.
See ECF No. 71. The Court also concluded that Mr. Campbell had stated a
claim against Defendant Winchester, in his individual capacity, for deliberate indifference
to Plaintiff’s serious medical needs, by refusing to: (1) schedule Plaintiff’s hip surgery and
(2) prescribe more potent pain medication. (ECF No. 71:5-6).
Defendant OCCJA argues that “the Amended Complaint fails to identify and [sic]
act or omission by either Defendant [Monday or Williams] that is affirmatively linked to a
policy or custom of the OCCJA that is the moving force behind his alleged constitutional
injury.” (ECF No. 60:7). But Plaintiff’s theory of municipal liability against the OCCJA is
premised on that entity being responsible for enacting a policy or custom responsible for
the actions of Defendants Capehart and Winchester.
a. Defendant Capehart
In the Amended Complaint, Plaintiff alleges that on April 26, 2022, Defendant
Capehart came to Plaintiff’s cell to deliver medication at approximately midnight, which
was approximately 7 hours late. (ECF No. 25:9- 10). Mr. Campbell alleges that due to the
delay, his pain “was so severe that [he] could not lift [himself] out of the bed” to walk to
the cell door to receive his medication. (ECF No. 25:10). Plaintiff also alleges that
Defendant Capehart “stood in the doorway with [Plaintiff’s] medication in his hands and
told [Plaintiff] to get up or no meds.” (ECF No. 25:10). According to Plaintiff, Defendant
Capehart “laughed and joked as [Plaintiff] laid there in severe pain” before walking off.
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 9 of 17

10
(ECF No. 25:10, 20). As stated, these allegations state a claim for relief against Defendant
Capehart in his individual capacity.	
See supra. Mr. Campbell attributes Defendant
Capehart’s actions to policies and/or customs created by the OCCJA:
Criminal Justice Authority[] . . .is responsible though their official policies,
and informal customs amounting to a widespread practice of “negligence”
and “deliberate indifferent” to my serious medical need through their
customs of not providing health care to pre-trial detainee, bed stricken with
pain and “policy” will not allow the pill call LNU’s to step inside a cell (2 ft)
to pass a bedstricken w/pain inmate his medication. . . . therefore, the
inmate is forced to lay in his cell in pain, while the med pass nurse, standing
2 ft, away refuse to give the inmate his/her medication that s/he is holding
in their hand.
. . .
On March 12, 2022 @5:47 I experienced extreme severe pain and I call for
help and my cellmate called for me also, and [ ] the common practice is
that they tell (me) the inmates that they will send medical help, but they
easily get distracted with another matter and no one from medical never
come until you die or nearly die. After several consecutive phone calls, they
will finally answer and (I) the inmate will remind them and all they say is:
“My bad, I’ll call medical anow for you and still no one will ever come help.
On March 31st, 2022, and also in Feb. and May 2022, I made several
emergency phone calls on the wall phone in my call #13-D-22 with the
exact same results as I experienced 03/12/2022.
(ECF No. 25:10, 11).
Elsewhere in the Amended Complaint, Mr. Campbell again refers to:
The Jail Trust’s Policies of inadequate training and their inadequate
supervision; and their unprofessional employees, as a lack of supervision,
continue to adhere to unconstitutional customs & practices of “negligence
and deliberate indifference to my [pre-trial detainee] serious medical
needs.” Their refusal to give the inmates their pain medication as they stand
2 steps away watching the inmate in pain begging for help, holding the
medication in their hand . . . then telling the inmate: “get up & walk over
here or you will not receive your medication.”
(ECF No. 25:13).
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 10 of 17

11
And finally, in the response to Defendant OCCJA’s Motion to Dismiss, Plaintiff also
states:
According to Defendant Capehart: “Due to Safety reasons he could
not walk Plaintiff’s medications to him in his cell due to (OCCJA) “Jail Policy.”
. . .
Mr. Capehart never articulated the title of the policy he was making
reference unto, which disenabled the Plaintiff from articulating the policy
Mr. Capehart was referring to. It is a policy that was adhered until then &
still is now.
Mr. Capehart and whatever policy was/is the moving force behind
the constitutional violation that the Plaintiff suffered. Mr. Capehart
personally admitted jail policy was the moving force being denying
treatment to Plaintiff’s serious medical needs. It is a fact that OCDC &
OCCJA is liable for violating 42 U.S.C. § 1983 when Othella Capehart & Dr.
Winchester executed either or both: “Jail Policy /Turn Key Health’s Policy.”
(ECF No. 68:8-9) (internal citations omitted). Mr. Campbell further attributes Defendant
Capehart’s actions to OCCJA’s failure to properly train its employees.
See ECF No. 25:10-
11 (“As a result of [the OCCJA’s] staff members and their emergency medical telephone
wall speaker operators are not properly nor adequately trained to respect nor respond to
“the serious medical needs of inmates” . . .Their policy and policy makers allow anyone,
untrained person off the streets, to be hired today and be operating the emergency phone
system tomorrow or the following week, with no training.”).
b. Defendant Winchester
As to Defendant Winchester, in the Amended Complaint, Plaintiff stated that Dr.
Winchester had told him that he was not allowed to provide the type of pain medication
that he, the physician, believed Plaintiff needed; specifically that it was “not authorized
in this institution.” (ECF No. 25:7, 13). And in his response to the OCCJA’s Motion to
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 11 of 17

12
Dismiss, Mr. Campbell states that Dr. Winchester’s position on prescribing a higher level
of pain medication was premised on the fact that “Policy would not allow him to prescribe
Plaintiff nothing stronger than aspirin.” (ECF No. 68:6).
c. Plaintiff has Stated a Claim for
Deliberate Indifference Against Defendant OCCJA
Mr. Campbell has alleged that the OCCJA maintained policies and/or customs
and/or practices of: (1) failing to adequately train their employees to respond to inmate’s
medical requests via a wall speakerphone, (2) not allowing certain levels of pain
medication to be prescribed, and (3) not allowing “pill call” nurses to step into an inmate’s
cell to give him medication. According to Mr. Campbell, these policies/customs/practices
resulted in: (1) a delay of Plaintiff receiving his medication, (2) a denial of Plaintiff’s
medication because he was too sick to get out of bed to receive it, and (3) a lack of the
type of pain medication he received being inadequate. Finally, Plaintiff has adequately
alleged that the actions were taken with deliberate indifference—i.e.—that the OCCJA is
responsible through the aforementioned policies which have become customary at the
jail.
See ECF No. 25:13.
Based on the forgoing, the Court should conclude that Plaintiff has stated a claim,
based on a theory of municipal liability, against the OCCJA, for deliberate indifference to
his serious medical needs in violation of the Fourteenth Amendment.
III. THE MOTION TO DISMISS FILED BY DEFENDANTS MONDAY AND
WILLIAMS IN THEIR INDIVIDUAL CAPACITIES
Defendants Monday and Williams, in their individual capacities, have filed a Motion
to Dismiss, arguing three theories: (1) improper service; (2) failure to state a claim for
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 12 of 17

13
violation of the Fourteenth Amendment and (3) qualified immunity. (ECF No. 61). The
Court should agree that Defendants Monday and Williams were not properly served. On
that basis, the Court should quash the original service and allow Plaintiff an opportunity
to effectuate proper service on these Defendants.
Personal service under Rule 4 of the Federal Rules of Civil Procedure “notif[ies] a
defendant of the commencement of an action against him.”
Okla. Radio Assocs. v. Fed.
Deposit Ins. Corp., 969 F.2d 940, 943 (10th Cir. 1992). Further, such service “provides
the mechanism” for the court to “assert[ ] jurisdiction over the person of the party
served.”
Id.;
see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
350-51 (1999). A Rule 12(b)(5) motion challenges the plaintiff’s mode of serving process
on the moving party.
Craig v. City of Hobart, No. CIV-09-53-C, 2010 WL 680857, at *1
(W.D. Okla. Feb. 24, 2010) (citing 5B Charles A. Wright & Arthur R. Miller,
Federal Practice
& Procedure § 1353 (3d ed. 2004)). In opposing a Rule 12(b)(5) motion, the plaintiff
bears the burden of showing that he or she “complied with all statutory and due process
requirements.”
Id. “Motions under Federal Rules 12(b)(4) and 12(b)(5) differ from the
other motions permitted by Rule 12(b) somewhat in that they offer the district court a
course of action—quashing the process without dismissing the action—other than simply
dismissing the case when the defendant's defense or objection is sustained.” 5B Wright
& Miller,
supra, § 1354;
accord Gray v. Ritter, No. CIV-09-909-F, 2010 WL 4880890, at
*2 (W.D. Okla. Oct. 8, 2010).
Pursuant to Federal Rule of Civil Procedure 4(e)(1), service may be made upon an
individual within a judicial district of the United States by “following state law for serving
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 13 of 17

14
a summons in an action brought in courts of general jurisdiction in the state where the
district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). Oklahoma relies
on a three-part test regarding sufficiency of service of process: “ ‘(1) Is there a statute
authorizing the method of service employed?; (2) Have the requirements of the statute
been observed?; and (3) Have fundamental due process requirements been met?’ ”
Hukill
v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 799 (10th Cir. 2008) (citation
omitted).
Under the first prong, service of process in Oklahoma is governed by OKLA. STAT.
tit. 12, § 2004. For service by personal delivery upon an individual, Oklahoma law provides
that service shall be made as follows:
upon an individual other than an infant who is less than fifteen (15) years
of age or an incompetent person, by delivering a copy of the summons and
of the petition personally or by leaving copies thereof at the person’s
dwelling house or usual place of abode with some person then residing
therein who is fifteen (15) years of age or older, by delivering a copy of
the summons and of the petition to an agent authorized by appointment or
by law to receive service of process, or by delivering a copy of the summons
and of the petition personally or by leaving copies thereof at an agreed
meeting place with some person then residing at the person's dwelling
house or usual place of abode[.]
12 O.S. § 2004(C)(1)(c)(1). The inquiry thus turns to whether Mr. Campbell observed the
requirements of 12 O.S. § 2004 when serving Defendants Monday and Williams, in their
individual capacities.
On December 6, 2022, “Devin Resides, General Counsel” accepted service for
Defendants Monday and Williams.
See ECF No. 35:4-5. Defendants Monday and William
contend that Mr. Resides is not an authorized agent for the Oklahoma County Detention
Center. (ECF No. 61:4). In his Response, Plaintiff states that Defendants Monday and
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 14 of 17

15
Williams “were evasive in accepting service of process” and “they both were very much
aware that they were defendants in this matter” and Mr. Resides “exercised his authority
to accept service of process on their behalf.” (ECF No. 69:1). The Court should reject
Plaintiff’s arguments.
First. Mr. Campbell has no proof, beyond his bare allegations, that Defendants
Monday and Williams were evading service. Second, the Court is leery as to whether
Messrs. Monday and Williams were “very much aware that they were defendants in this
matter.” Indeed, the fact that these Defendants waited nine months to file anything in
this action indicates otherwise.
See ECF Nos. 60 & 61. Finally, Defendants Williams and
Monday have submitted proof, in the form of affidavits, that neither of them had
authorized Mr. Resides to accept service on their behalf and they were not aware that
they had been named in the lawsuit or that service had been attempted.
See ECF Nos.
61-1 & 61-2.
Substantial compliance is the proper rule for service of process in Oklahoma.
See
Habyarimana v. Kagame, 821 F. Supp. 2d 1244, 1252 (W.D. Okla. 2011),
aff'd, 696 F.3d
1029 (10th Cir. 2012). The relevant inquiry, therefore, is whether Plaintiff substantially
complied with the requirements set forth in OKLA. STAT. tit. 12, § 2004. Based on the
forgoing, the Court should answer this question in the negative. The statute allowed
Plaintiff to serve Defendants Monday and Williams through personal delivery or certified
mail.
See OKLA. STAT. tit. 12, § 2004. Plaintiff attempted personal service, but instead
of serving the Defendants at his dwelling or usual place of abode, he served General
Counsel for the Oklahoma County Detention Center. Plaintiff provides no factual support
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 15 of 17

16
that this individual was an agent authorized by law to accept service on behalf of
Defendants Monday or Williams. Thus, the attempted service on these Defendants was
defective.
Motions under Rule 12(b)(5) offer the district court the option of quashing the
improper service of process without dismissing the action.
See Pendleton v. Bd. of Cnty.
Commissioners for Okla. Cnty., No. CIV-18-707-G, 2019 WL 4752269, at *2 (W.D. Okla.
Sept. 30, 2019);
accord Gray v. Ritter, No. CIV-09-909-F, 2010 WL 4880890, at *2 (W.D.
Okla. Oct. 8, 2010);
Lasky v. Lansford, 76 F. App’x 240, 241 (10th Cir. 2003); 5B Charles
A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1354 (3d ed.2010). Here,
there is no indication that Plaintiff cannot properly serve Defendants Monday and
Williams. Thus, the Court should quash the original service, and Plaintiff should effectuate
proper service on these Defendants within thirty (30) days of this Order. If Plaintiff fails
to effectuate service within this period, this case will be dismissed without prejudice as
to these defendants. At this time, and because of the pending service matter, the Court
should abstain from making any finding on Plaintiff’s state law negligence claims against
Defendants Monday and Williams.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the forgoing, the Court should: (1) dismiss the official capacity claims
against Defendants Monday and Williams as legally redundant and based on Plaintiff’s
wish to dismiss said claims; (2) quash the original service attempt on Defendants Monday
and Williams in their individual capacity claims; (3) allow Mr. Campbell 30 days to
effectuate proper service on Defendants Monday and Williams in their individual
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 16 of 17

17
capacities or risk dismissal of the claims against these Defendants; (4) conclude that
Plaintiff has stated a claim against the OCCJA under a theory of municipal liability for
deliberate indifference to Plaintiff’s serious medical needs in violation of the Fourteenth
Amendment; and (5) make no finding on Plaintiff’s state law negligence claim at this time.
Plaintiff is hereby advised of his right to object to this Report and
Recommendation.
See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the
District Court by March 22, 2024.
See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P.
72(b)(2). Failure to make timely objection to this Report and Recommendation waives
the right to appellate review of both factual and legal questions contained herein.
Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF THE REFERRAL
This Report and Recommendation does not dispose of all issues currently referred
to the undersigned magistrate judge in the captioned matter.
ENTERED on March 5, 2024.
Case 5:22-cv-00399-R Document 82 Filed 03/05/24 Page 17 of 17