Opinion
CIV-24-119-JD
06-28-2024
LISA M. HICE, LEANN D. HOFF, as Co-Administrators of the Estate of Marvin G. May, Deceased, Plaintiffs, v. TURN KEY HEALTH CLINICS, LLC, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
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.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 suit under the Oklahoma Governmental Tort Claims Act (“OGTCA”), OKLA. STAT. tit. 51, §§ 151-258. Docs. 14, 22. The undersigned recommends the Court deny Defendants' motions to dismiss.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
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, 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 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.
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.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.
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.
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.
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).
“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. 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 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 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; 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)).
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 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 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 Fed.Appx. 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 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.
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:
• 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 underprescribe (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
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 costcutting measures alone would have been insufficient).
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.
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 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.
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.
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 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.