Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 1 of 11

Transcription

1 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA SCOTT W. BIRDWELL, ROBBIE EMERY ) BURKE, as the Special Administratrix of ) The Estate of Eric Harris, Deceased, and ) TERRY BYRUM, ) ) Plaintiffs, ) ) v. ) Case No. 15-cv-0304-TCK-TLW ) STANLEY GLANZ, SHERIFF OF TULSA ) COUNTY, in his personal capacity and ) official capacity, BOARD OF COUNTY ) COMMISSIONERS OF TULSA COUNTY, ) ARMOR CORRECTIONAL HEALTH ) SERVICES, INC., UNKNOWN NURSE #1, ) UNKNOWN ATTENDING PHYSICIAN #1, ) ROBERT C. BATES, MICHAEL ) HUCKEBY, JOSEPH BYARS and ) RICARDO VACA, ) ) Defendants. ) MOTION AND BRIEF TO DISMISS COMPLAINT AND/OR DROP PARTY BY DEFENDANT BOARD OF COUNTY COMMISSIONERS OF TULSA COUNTY Pursuant to Federal Rules of Civil Procedure 21 and 12(b)(6), Defendant Board of County Commissioners of Tulsa County ( Board of County Commissioners or BOCC ) hereby moves this Court for an order dropping the Defendant BOCC as a misjoined party defendant and/or dismissing Plaintiff Scott Birdwell s ( Birdwell ) claims against it on the grounds that Plaintiffs Second Amended Complaint ( Complaint ) fails to state a claim upon which relief can be granted. Should the Court deny Defendant BOCC s Motion to Dismiss and/or Drop Party, then Defendant BOCC respectfully requests, pursuant to Fed.R.Civ.P. 12(e), an Order of this Court requiring a more definite statement from Plaintiff Birdwell regarding the basis for his claims against the Defendant BOCC.

2 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 2 of 11 Defendant BOCC hereby adopts and incorporates the Motion to Dismiss filed in this case on behalf of Defendant Armor Correctional Health Services, Inc. (Doc. #18) as well as the Motion to Dismiss filed in this case on behalf of Defendant Stanley Glanz in his official capacity (Doc. # ); the arguments made by Defendants therein, if successful, are potentially dispositive of Plaintiff Birdwell s claims against the Defendant BOCC. Additionally, Defendant BOCC submits the following brief in support: I. INTRODUCTION Plaintiffs do not complain that the BOCC is in any way responsible for the injuries allegedly sustained by Eric Harris and/or Terry Byrum. 1 Rather, Plaintiff Birdwell complains that the BOCC is responsible to him in negligence and under 42 U.S.C for the inadequate medical care he allegedly received at the hands of Defendants Unknown Attending Physician #1 and Unknown Nurse #1, both employed by Defendant Armor Correctional Health Services, Inc. ( Armor ), while Birdwell was in the Tulsa County Jail. 2 Plaintiff Birdwell seeks recovery against the BOCC based on his mistaken belief that 57 O.S somehow renders the BOCC liable for the acts and/or omissions of medical personnel employed by Armor to work in the 1 Robbie Emery Burke, as the Special Administratrix of the Estate of Eric Harris, Deceased, has filed suit under 42 U.S.C against Defendants Glanz, Bates, Huckeby, Byars and Vaca (see Complaint, , Doc. #6), and Terry Byrum has filed suit under 42 U.S.C against Defendants Glanz and Bates (see Complaint, , Doc. #6), based on injuries each allegedly sustained (outside the confines of a jail) during their respective arrests. Plaintiffs do not articulate why these two claims are joined with Plaintiff Birdwell s claim for inadequate medical care while in the jail other than to conclusorily allege that all three plaintiffs were injured as a result of inadequate and unconstitutional training and supervision fostered by Sheriff Glanz. Complaint, 1, Doc. #6. 2 See Complaint, 9-11, and , Doc. #6. 3 Every county, by authority of the board of county commissioners and at the expense of the county, shall have a jail or access to a jail in another county for the safekeeping of prisoners lawfully committed. 57 O.S

3 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 3 of 11 Tulsa County Jail. See Complaint, 8-11, and , Doc. #6. Established Oklahoma law refutes this legal conclusion and justifies dismissing Plaintiff Birdwell s Complaint against the BOCC, dropping the BOCC as a party defendant or requiring Plaintiff Birdwell to articulate in Plaintiffs Complaint the basis for his claims against the Defendant BOCC. II. DEFENDANT BOCC SHOULD BE DROPPED AS A PARTY DEFENDANT Counties may be sued in Oklahoma by filing suit against a county officer in his or her official capacity, 4 see 12 O.S. 2025(D)(2) 5 and 19 O.S. 6, 6 or by filing suit against "Board of 4 Plaintiff s suit herein against Defendant Stanley Glanz, in his official capacity as the Tulsa County Sheriff, is a suit against Tulsa County. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Monell v. Department of Soc. Servs., 436 U.S. 658, 690 fn. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Barney v. Pulsipher, 143 F.3d 1299, 1307, fn. 4 (10th Cir. 1998); and Starrett v. Wadley, 876 F.2d 808, 813 (10th Cir. 1989). See also Pellegrino v. State ex rel. Cameron University ex rel. Board of Regents of State, 2003 OK 2, 5, 63 P.3d 535, 537 ("A suit against a governmental officer in his or her 'official capacity' is the same as a suit against the entity that the officer represents, and is an attempt to impose liability upon that entity"); Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir. 1999) (suit against Jackson County Sheriff in his official capacity is the equivalent of a suit against Jackson County, Oklahoma); Poore v. Glanz, 46 F.Supp.3d 1191, 1203 (N.D.Okla. 2014) ( official capacity claim against Sheriff Glanz is considered to be a claim for liability of the county, and the Court therefore applies municipal liability law to that claim ); and Darnold v. Koch, 2011 WL (N.D.Okla. 2011) ( any claim against Defendant Glanz in his official capacity [as Sheriff] is tantamount to an action against Tulsa County itself ). 5 When a public officer sues or is sued in the official capacity of the public officer, the public officer may be described as a party by the official title of the public officer rather than by name; but the court may require the name of the public officer to be added. 12 O.S. 2025(D)(2). 6 When a judgment shall be rendered against the board of commissioners of any county, or against any county officer in any action prosecuted by or against him in his official name, where the same should be paid by the county, no execution shall issue upon the said judgment, but a tax sufficient to pay same shall be levied and collected in like manner as other county taxes, and when collected shall be paid by the county treasurer on the delivery of a proper receipt and the signing of an acknowledgment on the court record of said judgment, by the party in whose favor the judgment was rendered, or by his attorney of record, that same has been satisfied. 19 O.S. 6. 3

4 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 4 of 11 County Commissioners of the County of," 19 O.S. 4; 7 but a county may not be sued twice for the same offense. 8 In addition to being sued as the County s representative, the Board of County Commissioners of Tulsa County can also be sued as one of the six popularly elected offices in the County of Tulsa, Oklahoma. The BOCC is responsible for, among other things, buying and selling real estate, highway maintenance, contracting on behalf of the county, etc. See 19 O.S. 339 (general powers and duties of the board of county commissioners). So whenever a board of county commissioners is sued in Oklahoma, the question arises: Is the BOCC sued in its representative capacity as the County, or is it sued based on its own acts or omissions in conducting business as one of the six popularly elected county offices? [T]he absence of a single chief executive and diffusion of responsibility among numerous independently elected officials are general characteristics of county government in the United States. Avery v. Midland County, Tex., 390 U.S. 474, , 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968) (Harlan, J., dissenting). The Oklahoma Constitution divides the State into seventyseven counties and creates in each county a number of separate and distinct offices. See Okla. Const. Art. 17, 2 and 8. The office of county sheriff is created and established by Oklahoma s Constitution, see Okla. Const. Art. 17, 2, and is on par with the office of board of county 7 In all suits or proceedings by or against a county, the name in which a county shall sue or be sued shall be, "Board of County Commissioners of the County of," but this provision shall not prevent county officers, where authorized by law, from suing in their official name for the benefit of the county. 19 O.S See, e.g., E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 297, 122 S.Ct. 754, 766, 151 L.Ed.2d 755 (2002) ( it goes without saying that the courts can and should preclude double recovery by an individual ); Sims v. Jefferson Downs Racing Assoc., Inc., 778 F.2d 1068, 1081 (5th Cir. 1985) ( outside of an action against an officer personally, a plaintiff does not have an action against both the corporation and its officer in an official capacity ); and Kruchowski v. Weyerhaeuser Co., 2008 OK 105, 33, 202 P.3d 144, 153 ( Oklahoma law allows only one recovery to make a plaintiff whole ). 4

5 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 5 of 11 commissioners (i.e., one does not control the other). Id. and 19 O.S In Oklahoma, county officers are popularly elected by the people of the county, see 19 O.S. 131, and county officer refers to the county clerk, county commissioner, county assessor, district court clerk, county treasurer and county sheriff. 19 O.S Every county officer... appoint[s] such regular and special deputies as are essential to the performance of the duties of [his or her] office... [and fixes] their salaries and compensation. 19 O.S Deputy means one or more regular employees appointed to assist a county officer in the performance of the official duties of the county officer. 19 O.S Counties have only such authority as is granted by statute[, and]... [p]ublic officers possess only such authority as is conferred upon them by law and such authority must be exercised in the manner provided by law. Tulsa Exposition & Fair Corp. v. Board of County Comm rs of Tulsa County, 1970 OK 67, 26, 468 P.2d 501, (citations omitted). The Tulsa County Sheriff s Office is the only county office that exercises control over the Tulsa County Jail. The District Attorney and the Sheriff are the only two [county] offices which involve any law enforcement duties Op. Att y Gen. 98, 1. The county sheriff is an independently elected official, 19 O.S. 131, duty-bound together with his undersheriff and deputies to preserve the public peace, 19 O.S. 516, having the charge and custody of the jail of his county, 19 O.S. 513, responsible for training the jailers who work at the jail of his county, 19 O.S , and responsible for the official acts of his undersheriff, deputies and detention officers. 19 O.S As alleged by Plaintiff Birdwell in his Complaint, Defendant Glanz, as Sheriff and the head of the Tulsa County Sheriff s Office ( TCSO ), was, at all times relevant hereto, 5

6 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 6 of 11 responsible for the provision of appropriate medical care and treatment to inmates in need of such care, pursuant to 57 Okla. Stat [and] for creating, adopting, approving and enforcing the rules, regulations, policies, practices [and] procedures of TCSO and the Tulsa County Jail. Complaint, 7, Doc. #6. To the extent that Plaintiff Birdwell has sued Defendant BOCC in its representative capacity as the County under 19 O.S. 4, he has already filed suit against the County by filing suit against the Sheriff in his official capacity under 12 O.S. 2025(D)(2) and 19 O.S. 6. Adding the BOCC as a party defendant is an unnecessary duplication of parties and attorneys and accompanying time and expense. Defendant BOCC should be dismissed and terminated as an improper party defendant because the County may not be sued twice for the same offense. Unless the Court dismisses the County, it would be more transparent and less confusing to keep the Sheriff in his official capacity as the county representative and drop the BOCC as a duplicate party. Plaintiff Birdwell complains that he received inadequate medical care while in the Tulsa County Jail. See Complaint, 21-37, Doc. #6. The Sheriff is the final policymaker at the jail and the buck stops at his desk on any respondeat superior claims relating to his detention officers. Under Oklahoma law, the county sheriff is the final policymaker as to the county jail. Snow v. Board of County Comm'rs of the County of McClain, 2014 WL , 9 The sheriff, or such person designated by law in his place, shall have charge of the county jail of his county and of all persons by law confined therein, and such sheriff or other officer is hereby required to conform, in all respects, to the rules and directions promulgated pursuant to Section 192 of Title 74 of the Oklahoma Statutes and of the district judge and communicated to him by the proper authority. 57 O.S. 47. See also 57 O.S. 52 ( It shall be the duty of the sheriff of each county to provide bed clothing, washing, board and medical care when required, and all necessities for the comfort and welfare of prisoners as specified by the standards promulgated pursuant to Section 192 of Title 74 of the Oklahoma Statutes ). 6

7 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 7 of 11 *2 (W.D.Okla. 2014) (citing 19 O.S. 513). 10 The sheriff, and not the board [of county commissioners], is responsible for medical care in [a county jail in] Oklahoma. Estate of Crowell ex rel. Boen v. Board of County Com'rs of County of Cleveland, 2010 OK 5, 23, 237 P.3d 134, 142. See also State ex rel. Dept. of Human Services v. Board of County Com'rs of McClain County, 1992 OK 29, 5, 829 P.2d 961, 962 ( [57 O.S. 52] places upon the county sheriff the duty to provide medical care to any prisoners of the county who are in need of it, regardless of how the need arises ). Including the BOCC as a party defendant in this case, in addition to the Sheriff in his official capacity, is misleading to the public. The BOCC does not operate the jail. The public, upon hearing that the BOCC is being sued, collectively wonder: What did the BOCC do wrong? The Sheriff in his official capacity represents the County and his representation of the County is complete. See, e.g., Palmer v. Board of County Commissioners of Sequoyah County, 2007 WL (E.D.Okla. 2007) (dismissing board of county commissioners from 1983 action and leaving sheriff in his official capacity as proper defendant). As in Nelson v. Glanz, 2011 WL , *5 (N.D.Okla. 2011), the Plaintiff in this case has no basis to proceed with a 1983 claim against the Board because, as a matter of law, the Board is not a final policymaker for the Sheriff s Office and it cannot be held liable to plaintiff under 1983 for the acts of employees of the Sheriff s Office. 11 Plaintiff s Complaint fails to 10 The sheriff shall have the charge and custody of the jail of his county, and all the prisoners in the same, and shall keep such jail himself, or by his deputy or jailer, for whose acts he and his sureties shall be liable. 19 O.S A fortiori, the BOCC cannot be held liable for the acts and/or omissions of a physician or nurse employed by Armor. See also 51 O.S. 155(18) (the BOCC cannot be held liable for the acts and/or omissions of an independent contractor or consultant or his or her employees, agents, subcontractors or suppliers or of a person other than an employee of the [county] at the time the act or omission occurred ). 7

8 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 8 of 11 state a plausible claim for the recovery of damages from Defendant BOCC under 42 U.S.C for alleged violations of Plaintiff Birdwell s rights. Accordingly, in this suit against Sheriff Stanley Glanz in his official capacity, the Board of County Commissioners is a duplicative, unnecessary and improper party defendant in this action and should be dropped as a party defendant. 12 There is simply no liability that can be established against Tulsa County that is not derived through the Sheriff s alleged liability. III. PLAINTIFF S CLAIMS AGAINST DEFENDANT BOCC SHOULD BE DISMISSED FOR FAILURE TO MAKE CLEAR THE BASIS FOR DEFENDANT BOCC S ALLEGED LIABILITY Defendant BOCC should not be required to respond to a complaint devoid of factual averments identifying the wrongdoing which it, specifically, is alleged to have committed. The Court has discretion to treat vague pleadings under either Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P. 12(e). 13 Pinson v. Equifax Credit Information Services, LLC, 2006 WL , *2 (N.D.Okla. 2006). The Court employed Fed.R.Civ.P. 12(b)(6) in the recent case of Cox v. Glanz, 2011 WL , *7 (N.D.Okla. 2011): In the context of plaintiff's 1983 claim, general allegations of multiple defendants possible role in an alleged constitutional violation 12 Although [m]isjoinder of parties is not a ground for dismissing an action[, o]n motion or on its own, the court may at any time, on just terms, add or drop a party. Fed.R.Civ.P Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. Fed.R.Civ.P. 12(e). 8

9 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 9 of 11 will not suffice to state a claim... the complaint [should] make clear exactly who is alleged to have done what to whom. Plaintiff Birdwell s failure to articulate in his Complaint why he is adding the Board of County Commissioners as a party defendant in this case is fatal to his claims against this defendant. Plaintiff cannot plead on the one hand that he received inadequate medical care while staying in the Tulsa County Jail and file suit against the Sheriff in his official capacity, and then, on the other hand, add the Board of County Commissioners as a party defendant by doing nothing more than adding an s to the word Defendant throughout his Complaint. If Plaintiff Birdwell s Complaint could possibly be read as setting forth a short and plain statement of his claim 14 against the Sheriff in his official capacity, it fails to do so with respect to the Board of County Commissioners (other than by needlessly naming the BOCC as a duplicative party defendant, addressed in the preceding section of this brief). At no point in the Plaintiffs Complaint is the BOCC singled out for having committed some wrongful act or omission. And the BOCC s contractual relationship (on behalf of TCSO) with Armor does not give rise to tort liability based on the acts or omissions of doctors and nurses employed by Armor. See 51 O.S. 155(18) ( The state or a political subdivision shall not be liable if a loss or claim results from [a]n act or omission of an independent contractor or consultant or his or her employees, agents, subcontractors or suppliers or of a person other than an employee of the state or political subdivision at the time the act or omission occurred ). The BOCC is conspicuously absent from the facts as alleged by Plaintiff regarding inadequate medical care while in the jail. See Complaint, 21-37, Doc. #6. Plaintiffs conclusory legal allegation that the BOCC bear[s] ultimate responsibility, see Complaint, 1, Doc. #6, is not 14 Fed.R.Civ.P. 8(a)(2). 9

10 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 10 of 11 entitled to the presumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 681, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009). If the Court denies Defendant BOCC s Motion to Dismiss and/or Drop Party, then it should require the Plaintiff to file a more definite statement regarding the basis for his alleged claims against the Defendant BOCC. IV. CONCLUSION Defendant BOCC respectfully requests an Order of this Court dropping the BOCC as a misjoined party defendant or dismissing Plaintiff Birdwell s Complaint against it on the ground that Plaintiff Birdwell s Complaint fails to state a claim upon which relief can be granted (as argued herein and as argued by Armor in Doc. #18 and by the Sheriff in his official capacity in Doc. # ). Should the Court deny Defendant BOCC s Motion to Dismiss and/or Drop Party, then Defendant BOCC respectfully requests an Order of this Court requiring a more definite statement from Plaintiff Birdwell regarding the basis for his claims against the Defendant BOCC. Finally, if the Court orders Defendant BOCC to remain in this lawsuit together with the Sheriff in his official capacity, then the BOCC would request an Order of this Court declaring, for any purpose other than injunctive relief, that both parties are one and the same party defendant See Myers v. Okla. County Board of County Comm'rs, 151 F.3d 1313, 1316 n. 2 (10th Cir. 1998) (suit against county and official capacity suit against sheriff were both one and the same suit against the county); and Wright v. Stanley, 2015 WL , *2 (W.D.Okla. 2015) (court will treat Plaintiff's claims against the BOCC and the Sheriff in his official capacity as one and the same claim). 10

11 Case 4:15-cv TCK-FHM Document 35 Filed in USDC ND/OK on 08/18/15 Page 11 of 11 Respectfully submitted, s/douglas A. Wilson Douglas A. Wilson Assistant District Attorney Tulsa County District Attorney s Office 500 S. Denver Ave., Suite 832 Tulsa, OK Telephone: (918) Facsimile: (918) douglas.wilson@tulsacounty.org ATTORNEYS FOR DEFENDANT BOARD OF COUNTY COMMISSIONERS OF TULSA COUNTY CERTIFICATE OF MAILING AND ELECTRONIC NOTICE I hereby certify that on August 18, 2015, I electronically transmitted the foregoing document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Alexandra Gabrielle Ah Loy Robert Murray Blakemore Clark Otto Brewster Corbin C Brewster Guy Anthony Fortney Laura Marie Lauth Daniel E Smolen Donald Eugene Smolen, II Sean Patrick Snider Alexander Caldwell Vosler Scott Boudinot Wood s/ Douglas A. Wilson Douglas A. Wilson 11