Calloway v. Comanche County Facilities Authority The et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VERONICA WARNER 	)
CALLOWAY, as the Personal 	)
Representative of the 	)
Estate of Cari Jamel 	)
Warner, Sr., deceased, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-858-PRW
)
COMANCHE COUNTY 	)
FACILITIES AUTHORITY 	)
et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Before the Court is Defendant Magdalena Sikora M.D.’s Motion to
Dismiss. Doc. 23.1 Plaintiff, personal representative of her son Cari Jamel
Warner, Sr.’s estate, filed a complaint seeking relief under 42 U.S.C. § 1983
and Oklahoma law, after her son (Mr. Warner) died while a pretrial detainee
at the Comanche County Detention Center (“CCDC” or “jail”). Doc. 1. United
States District Judge Patrick R. Wyrick referred the case to the undersigned
Magistrate 	Judge 	for 	initial 	proceedings 	consistent 	with 	28 	U.S.C.
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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§ 636(b)(1)(B), (C). Doc. 32. Upon review, the undersigned recommends the
Court grant in part and deny in part Defendant Sikora’s motion to dismiss.
I. 	Factual background.
Mr. Warner, a forty-five-year-old man and Plaintiff’s son, had serious
health issues. Doc. 1, at 4. He was admitted as a patient to the Comanche
County Memorial Hospital in Lawton, Oklahoma on March 5, 2024. Id. at 7.
While there, doctors and staff treated him for “hypertensive emergency, renal
failure (a/k/a acute kidney failure), congestive heart failure, acute and chronic
congestive heart failure exacerbation, interstitial edema, chest pain, chest
pressure, shortness of breath, and other blood pressure issues.” Id. During his
time in the hospital, Mr. Warner received dialysis treatments through a
“permanent catheter port” which doctors had placed on March 8, 2024. Id. at
7-8. Because doctors determined that Mr. Warner “could not recover” his
kidney function, he would require dialysis treatment after he left the hospital.
Id. at 7.
On the morning of March 12, 2024, Plaintiff voluntarily left the hospital
under his own power by stealing a vehicle parked outside. Id. at 8.2 Law
enforcement authorities quickly arrested him. Id. at 8. Before taking him to
2 	To be clear, Mr. Warner was not in custody or a detainee during his
hospitalization. Doc. 1, at 7-8.
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jail, they 	brought 	him back 	to the 	hospital to be “medically cleared for
detention at the CCDC.” Id.3 His two attending physicians medically cleared
him for jail with the caveat he receive “outpatient dialysis [treatment] through
the jail” and that jail personnel should return him to the hospital for any “new
or worsening symptoms.” Id. at 9. To facilitate the dialysis treatment, the
doctors wrote a referral “to nephrologist Sikora ‘in the outpatient setting.’” Id.4
The referral recommended dialysis three times a week to begin the next day
on March 13, 2024. Id.
According to Plaintiff, around 10:30 a.m. on the morning of Mr. Warner’s
arrest, a nurse with U.S. Renal Care opened an admission chart for Mr.
Warner but noted that Defendants Sikora and U.S. Renal Care were refusing
to treat Mr. Warner. Id. at 9-10. The nurse also documented that another U.S.
Renal Care nephrologist “agreed with the refusal to treat.” Id. at 10. U.S. Renal
3 	Plaintiff explains that Defendant Comanche County Facilities Authority
(CCFA) operates the CCDC. Doc. 1, at 5.
4 	Plaintiff describes Defendant Sikora as “a physician who practices and
is board-certified in nephrology,” and “provides nephrology and related dialysis
healthcare on behalf of Defendant U.S. Renal Care, Inc. and/or Does I-X at 924
SW 38th Street, Lawton, OK 73505.” Id. at 5.
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Care personnel then closed Mr. Warner’s chart that afternoon with a discharge
note. Id.5
Plaintiff alleges that, after this discharge and despite their knowledge of
Mr. Warner’s condition, neither Dr. Sikora nor U.S. Renal Care arranged for
or “transfer[red] [Mr.] Warner’s care as needed, and/or failed to properly
communicate [his] status and their involvement in a reasonable and timely
manner.” Id. at 10.
After hospital doctors medically cleared Mr. Warner on the morning of
March 12, 2024, CCDC personnel transported him to jail, where he stayed until
he was transported back to the hospital in an unresponsive state on March 24,
2024. Id. at 12, 14-15, 24. During his time at the jail, Plaintiff alleges that no
one 	at 	CCDC 	provided 	Mr. 	Warner 	with 	dialysis 	treatment 	or 	medical
treatment of any kind. Id. at 12-23. And no one contacted either Defendant
Sikora or Mr. Warner’s other physicians about his medical needs. Id. at 13. Mr.
Warner died at the hospital on March 24, 2024, of a “hemorrhagic stroke.” Id.
at 24.
In her complaint, Plaintiff asserts a state-law claim of negligence against
Defendant Sikora. Id. at 75-78. Plaintiff alleges Defendant Sikora owed Mr.
5 	Plaintiff does not allege Mr. Warner presented himself for treatment or
was ever physically present at the U.S. Renal Care clinic on this date.
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Warner 	“duties” 	to 	“handle 	and 	monitor” 	his 	care, 	provide 	him 	with
“reasonable medical care and access to medical care given [his] appearance and
condition,” and to “work with and communicate with the CCDC and other
parties involved in Mr. Warner’s medical care and detention in a reasonable,
clear, and prompt manner.” Id. at 75-76.
“[I]n the alternative,” Plaintiff alleges “violations of the Fourteenth
Amendment via 42 U.S.C. § 1983” against Defendant Sikora “in her individual
capacity.” Id. at 75-81. Plaintiff states that “in the event that Defendant[]
Sikora [was] acting under color of law for any of the medical care at issue,” she
acted with deliberate indifference to Mr. Warner’s serious medical needs. Id.
at 79.
Defendant Sikora moves to dismiss both claims against her. Doc. 23. As
for Plaintiff’s § 1983 claim, she argues Plaintiff has failed to sufficiently allege
that she is a state actor. Id. at 18-24. But, even if she had, Plaintiff has not
sufficiently alleged Defendant Sikora acted with deliberate indifference. Id.
As for Plaintiff’s negligence claim, Defendant Sikora argues it is barred
either by a one-year statute of limitations under Oklahoma law or by the
Oklahoma 	Governmental 	Tort 	Claims 	Act’s 	(OGTCA) 	notice 	and 	timing
provisions. Id. at 8-14. If not barred, Defendant Sikora argues Plaintiff fails to
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sufficiently allege she owed a duty to Mr. Warner to act as his physician. Id. at
14-18.
II. 	Analysis.
A. 	Stating a claim under 42 U.S.C. § 1983.
“To state a claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added); see also
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995)
(“[T]he only proper defendants in a [§] 1983 claim are those who represent the
state in some capacity . . . .” (citation and internal brackets omitted)). “The
ultimate issue in determining whether a person is subject to suit under § 1983
is whether the alleged infringement of federal rights is ‘fairly attributable to
the state.’” Beedle v. Wilson, 422 F.3d 1059, 1065 (10th Cir. 2005) (quoting
Tarabishi v. McAlester Reg’l Hosp., 827 F.2d 648, 651 (10th Cir. 1987)); see also
Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (“[A] person acts under
color of state law only when exercising powers possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of
state law.” (internal quotation marks omitted)).
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“[A] 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.” Id. (citing Twombly, 550 U.S.
at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010).
B. 	Plaintiff fails to sufficiently allege Defendant Sikora is a
state actor under § 1983.
Plaintiff alleges that Defendant Sikora may have acted under color of
law. Doc. 1, at 79. She describes Defendant Sikora as a “medical professional.”
Id. But her status as a medical doctor does not designate her as a state actor.
See, e.g., Adkins v. Koduri, 755 F. App’x 751, 753 (10th Cir. 2018) (“[A] doctor
is not a state actor.”).
Nowhere in the complaint does Plaintiff allege Defendant Sikora was
employed by or contracted with either the State of Oklahoma or the CCDC to
provide medical care to inmates.6 Plaintiff also does not allege Defendant
Sikora interacted in any capacity with personnel from CCDC either before or
after Mr. Warner was detained there. And in response to the motion to dismiss,
6 	Plaintiff also does not allege U.S. Renal Care is a state or county facility
or that state or county actors control the medical decisions made there.
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Plaintiff admits that all her allegations against Defendant Sikora relate to
actions before Mr. Warner was detained at CCDC. Doc. 27, at 9 (explaining
“the Complaint notes that . . . Dr. Sikora wrongfully ignored, transferred, and
abandoned [Mr. Warner] as a patient before [he] was taken to the CCDC on
March 12, 2024.”).
The “under color of state law” requirement is a “jurisdictional requisite
for a § 1983 action.” West, 487 U.S. at 46. And it “excludes from its reach
‘merely private conduct, no matter how discriminatory or wrongful.’” Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457
U.S. 991, 1002 (1982)). This Court “cannot enforce a federal constitutional
right as against a private actor.” Wideman v. Watson, 617 F. App’x 891, 893
(10th Cir. 2015) (citing Hill v. Kemp, 478 F.3d 1236, 1256 (10th Cir. 2007)).
Defendant Sikora states she is a “private physician.” Doc. 23, at 19. A
private person may act “under color of state law” but only when they “have
exercised power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” West, 487
U.S. at 	49 (internal quotation 	marks 	omitted). Defendant Sikora argues
Plaintiff fails to sufficiently allege that she acted under color of state law, so
the Court should dismiss Plaintiff’s § 1983 claim against her. Doc. 23, at 18-
20.
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In response, Plaintiff argues that her allegations in the complaint about
Defendant Sikora’s “role in the medical care and transition at issue” are
enough to plead state action. Doc. 27, at 20. The undersigned disagrees.
To determine whether Defendant Sikora acted under color of state law
when she allegedly declined Mr. Warner’s referral for treatment, the Court
may apply “various analyses” under “the ‘nexus test,’ the ‘public function test,’
the ‘joint action test,’ and the ‘symbiotic relationship test.’” Barnett v. Hall,
Estill, Hardwick, Gable Golden & Nelson, P.C., 956 F.3d 1228, 1235 (10th Cir.
2020) (quoting Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir. 2013)).
“At the heart of each test is ‘whether the conduct allegedly causing the
deprivation of a federal right [is] fairly attributable to the State.’” Id. (quoting
Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d 381, 387 (10th Cir. 2016)).
Plaintiff first argues the public function test is met because the state is
required to provide healthcare to detainees and if a private party shares that
function their action is attributable to the state. Doc. 27, at 21-22. Plaintiff
generally presents a well-established premise. See, e.g., Sullivan, 526 U.S. at
55 (“[In West,] the State was constitutionally obligated to provide medical
treatment to injured inmates, and the delegation of that traditionally exclusive
public function to a private physician gave rise to a finding of state action.”).
But she fails to connect that premise to Defendant Sikora’s actions.
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As stated, she does not allege Defendant Sikora had any connection with
the CCDC much less a contractual obligation to provide medical care to its
inmates. Plaintiff also does not allege Defendant Sikora communicated with
CCDC personnel either before or during Mr. Warner’s detention or that she
freely assumed responsibility for CCDC’s obligation to provide medical care to
Mr. Warner as a detainee. In short, Defendant Sikora never treated Mr.
Warner at CCDC and CCDC personnel never delegated his care to Defendant
Sikora during his detention. And as Plaintiff makes clear in her response, she
is complaining about Defendant Sikora “abandon[ing]” Mr. Warner before he
was even processed into the CCDC as a detainee. Doc. 27, at 9. Given that
Defendant Sikora never saw or interacted with Mr. Warner in the jail setting
or while he was in custody, the Court cannot conclude that she functioned
within the public system in failing to accept a referral to administer dialysis to
Mr. Warner. See, e.g., Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
827 (7th Cir. 2009) (“[P]rivate organizations and their employees that have
only an incidental and transitory relationship with the state’s penal system
usually cannot be said to have accepted, voluntarily, the responsibility of
acting for the state and assuming the state’s responsibility for incarcerated
persons. For instance, an emergency medical system that has a preexisting
obligation 	to 	serve 	all 	persons 	who 	present 	themselves 	for 	emergency
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treatment 	hardly 	can 	be 	said 	to 	have 	entered 	into 	a 	specific 	voluntary
undertaking 	to 	assume 	the 	state’s 	special 	responsibility 	to 	incarcerated
persons.”).
Plaintiff asserts “[t]he nexus test is satisfied for the same reasons as the
public 	function 	test 	– 	detainees 	have 	mandated 	rights 	to 	medical 	care
associated with the correctional setting, and the provisions of the same by an
otherwise private party does not shield or negate a finding of state action.” Doc.
27, at 22-23. “Under the nexus test, a plaintiff must demonstrate that there is
a sufficiently close nexus between the government and the challenged conduct
such that the conduct may be fairly treated as that of the State itself.”
Gallagher, 49 F.3d at 1448 (internal quotation marks omitted). “[O]nly when
[the state] has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in law be deemed
to be that of the State,” can a court hold the state responsible for a private
decision. Id.
Again, Plaintiff does not connect this test with Defendant Sikora’s
actions. She does not allege state actors influenced Defendant Sikora’s decision
to decline the referral, either overtly or covertly, or that any official had the
power to do so because of some special relationship. “Mere approval of or
acquiescence in the initiatives of a private party is not sufficient to justify
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holding the State responsible for those initiatives under the terms of the
Fourteenth Amendment.” Blum, 457 U.S. at 1004-05. Plaintiff does not satisfy
the nexus test.
Plaintiff also asserts the “symbiotic relationship test” is met due to “the
intertwinement of constitutionally mandated healthcare for a detainee with
serious and life-threatening medical needs with providers such as Dr. Sikora.”
Doc. 27, at 23. Plaintiff essentially repeats the same argument for each test.
She provides no factual support in her complaint establishing that the CCDC
and Defendant Sikora had any type of mutually beneficial relationship related
to detainee healthcare. She does not allege the CCDC had insinuated itself into
Defendant Sikora’s medical practice or that her practice was indispensable to
the CCDC. So the allegations of her complaint cannot establish a symbiotic
relationship between the two.
Lastly, Plaintiff asserts Defendant Sikora’s actions satisfy the joint
action test because she and the other Defendants knew Mr. Warner was not
receiving adequate medical care during his detention. Id. at 23.
In applying the joint-action test, this Court asks, “whether the private
party was a ‘willful participant in joint action with the State or its agents.’”
Barnett, 956 F.3d at 1235 (quoting Gallagher, 49 F.3d at 1453). But Plaintiff
has alleged no type of joint action. Rather, she refers to the “respective failures”
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of both Defendant Sikora and CCDC personnel in caring for Mr. Warner. Doc.
27, at 23. And, if anything, Plaintiff’s allegations suggest Defendant Sikora
failed to jointly act with officials in transferring Mr. Warner’s care. So Plaintiff
fails to satisfy the joint-action test. See, e.g., Wittner, 720 F.3d at 777 (finding
joint-action test had not been satisfied where Plaintiff had “not alleged that
any state officials conspired with or acted jointly in making the decision to
medicate [the decedent]”).
Plaintiff 	has 	not 	adequately 	alleged 	Defendant 	Sikora’s 	conduct 	in
declining the referral to treat Mr. Warner is fairly attributable to the state. As
a result, Plaintiff’s complaints about her private conduct are not subject to
liability under § 1983. The Court should therefore dismiss the claim without
prejudice. See, e.g., Lay v. Otto, 530 F. App’x 800, 802-803 (10th Cir. 2013)
(remanding case to district court for an order of dismissal “‘without prejudice’
for lack of subject matter jurisdiction” where plaintiff failed to show that the
named defendants were acting “under color of state law” under § 1983).
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C. 	Plaintiff’s negligence claim against Defendant Sikora.
1. 	Plaintiff’s negligence claim against Defendant Sikora
is not barred by the statute of limitations found in
Okla. Stat. tit. 12, § 95(A)(11).
Defendant Sikora argues Plaintiff’s state-law negligence claim against
her is barred by a one-year statute of limitations. Doc. 23, at 10-12. Under
Oklahoma law, generally “[a]n action for damages for injury or death against
any physician, health care provider or hospital licensed under the laws of this
state, whether based in tort, breach of contract or otherwise, arising out of
patient care, shall be brought within two (2) years of the date the plaintiff knew
or should have known, through the exercise of reasonable diligence, of the
existence of the death, injury or condition complained of.” Okla. Stat. tit. 76,
§ 18. Defendant Sikora declined the referral on March 12, 2024, and Mr.
Warner died on March 24, 2024. Doc. 1, at 12. Plaintiff filed her complaint on
August 4, 2025. Id. at 1. So the complaint is timely under § 18.
Defendant 	points, 	however, 	to 	Okla. 	Stat. 	tit. 	12, 	§ 	95(11) 	which
“provides [a one-year] limitations period for all actions filed by inmates.” Pratt
v. GEO Grp., Inc., 802 F. Supp. 2d 1269, 1271 (W.D. Okla. 2011). Section 95(11)
states:
All actions filed by an inmate or by a person based upon facts that
occurred while the person was an inmate in the custody of one of
the following:
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a. the State of Oklahoma,
b. a contractor of the State of Oklahoma, or
c. a political subdivision of the State of Oklahoma,
to include, but not be limited to, the revocation of earned credits
and claims for injury to the rights of another, shall be commenced
within one (1) year after the cause of action shall have accrued[.]
Okla. Stat. tit. 12, § 95(11).
Defendant Sikora argues that because “Plaintiff’s claims arise from the
health care provided (or not provided) to [Mr. Warner] while he was in custody
of the CCDC,” that § 95(11) applies. Doc. 23, at 8-9. Plaintiff responds that she
is complaining about Defendant Sikora’s actions “before [Mr. Warner] was
taken to the CCDC on March 12, 2024,” and that § 95(11) is “inapplicable as to
wrongful conduct before [Mr. Warner’s] detention at the CCDC.” Doc. 27, at 9,
13. Based on the allegations in the complaint and, for purposes of this motion,
the undersigned agrees.
As noted above, Plaintiff’s allegations against Defendant Sikora in her
complaint revolve around Defendant Sikora’s rejection of a referral for future
care—not from CCDC medical personnel—but from a hospital doctor clearing
Mr. Warner for transport to jail. As this action did not occur “while” Mr.
Warner was an inmate at the CCDC, § 95(11)’s one-year statute of limitations
does not apply to Plaintiff’s negligence claim against Defendant Sikora. See,
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e.g., Doc. 1, at 12 (“On or around March 12, 2024[,] after being medically
cleared at [the hospital], [Mr.] Warner was booked into the CCDC.”).
2. 	Plaintiff’s negligence claim against Defendant Sikora
is not barred by the notice and timing provisions of
the OGTCA.
Defendant 	Sikora 	alternatively 	argues 	the 	Court 	should 	dismiss
Plaintiff’s state-law negligence claim against her for failure to satisfy the
timing and notice provisions under the OGTCA. Doc. 23, at 10-12. But as the
Court has concluded above, and the parties have effectively conceded for
purposes of this motion (see, e.g., Doc. 23, at 19; Doc. 27, at 13), Defendant
Sikora is not subject to the OGTCA because she is neither a public employee
nor a medical professional under contract with the CCDC. See, e.g., Okla. Stat.
tit. 512, § 152(7)(b)(7) (defining “Employee”).7 And, even if she were, Plaintiff
gave notice to the proper party as the OGTCA requires. Doc. 1, at 70; see id.
§ 156(A) (“Any person having a claim against the state or a political subdivision
within the scope of Section 151 et seq. of this title shall present a claim to the
state or political subdivision for any appropriate relief including the award of
money damages.”); id. § 156(D) (“A claim against a political subdivision shall
be in writing and filed with the office of the clerk of the governing body.”); see
7 	In her complaint, Plaintiff specifies Defendant Sikora was acting within
the scope of her “agency,” “authority, and/or employment on behalf of” U.S.
Renal Care. Doc. 1, at 78.
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also Okla. Stat. tit. 57, § 566.4(B)(2) (requiring claimant filing a tort action
involving county jail to comply with “all of the notice provisions” of the
OGTCA). Dismissal is not warranted on this basis.
3. 	Plaintiff has sufficiently alleged a negligence claim
against Defendant Sikora.
Defendant Sikora argues Plaintiff has failed to sufficiently plead she
owed a duty of care to Mr. Warner that she breached. Doc. 23, at 15-16. Plaintiff
disagrees, arguing she sufficiently stated in her complaint that Defendant
Sikora and Mr. Warner had a physician-patient relationship, and she knew
about his serious condition but refused to treat him. Doc. 27, at 16.8
In reviewing a motion to dismiss, this Court “accept[s] the well-pleaded
facts alleged as true and view[s] them in the light most favorable to the
plaintiff.” Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th
Cir. 2023). “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.” Iqbal, 556 U.S. at 678. “‘An allegation
8 	Plaintiff argues facts outside the complaint and attaches “extraneous”
documents to her response not referenced in her complaint. Doc. 27, at 17 &
n.5; id. Atts. 2-3. But ‘in deciding a Rule 12(b)(6) motion, a federal court may
only consider facts alleged within the complaint.” County of Santa Fe, N.M. v.
Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002).
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is conclusory where it states an inference without stating underlying facts or
is devoid of any factual enhancement.’” Clinton, 63 F.4th at 1275 (quoting
Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021)).
“The nature and specificity of the allegations required to state a plausible
claim will vary based on context.” Id. (quoting Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). But this Court’s “task is to
consider the complaint’s allegations ‘taken as a whole.’” Id. (quoting U.S. ex
rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1173 (10th Cir. 2010)).
“‘[G]ranting [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.’” Id. at 1276 (quoting Dias v. City and Cnty.
of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). So, “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.” Twombly, 550
U.S. at 556 (internal quotation marks omitted).
The elements of a negligence claim under Oklahoma law “are: (a) a duty
owed by the defendant to protect the plaintiff from injury, (b) a failure to
properly 	exercise 	or 	perform 	that 	duty 	and 	(c) 	plaintiff’s 	injuries 	[were]
proximately caused by the defendant’s failure to exercise the duty of care.”
Franklin v. Toal, 19 P.3d 834, 837 (Okla. 2000) (internal quotation marks and
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alteration omitted). “A medical provider has a duty to exercise ordinary care in
delivery of professional services.” Id.
Citing Jennings v. Badgett, 230 P.3d 861 (Okla. 2010), Defendant Sikora
argues Plaintiff does not sufficiently allege a physician-patient relationship
between her and Mr. Warner. Doc. 23, at 15-17. In Jennings, the court
addressed 	on 	summary 	judgment 	whether 	a 	physician, 	who 	gave 	his
professional opinion to another doctor over the phone on how to care for a
patient, had established a physician-patient relationship. 230 P.3d at 864-65.
Finding 	this 	to 	be 	a 	necessity 	in 	a 	medical 	malpractice 	case, 	the 	court
concluded the physician never established such a relationship with the patient
and so did not owe them a duty of care. Id. at 868 (“A telephone conversation
between a non-treating physician and the treating physician concerning the
patient, 	even 	when 	the 	treating 	physician 	relies 	on 	the 	non-treating
physician’s opinion, without more, is insufficient to establish a physician-
patient relationship.”); see also id. at 866 (“Because the duty in a medical
malpractice action is born out of a physician-patient contract, the relationship
is essential to an action for a breach of the duty giving rise to the malpractice
action.”).
“[T]he question of the formation of a physician-patient relationship is a
question 	of 	fact, 	turning 	upon 	a 	determination 	of 	whether 	the 	patient
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entrusted his treatment to the physician and the physician accepted the case.”
Id. at 866-67 (internal quotation marks omitted). Plaintiff alleges in her
complaint that Defendant Sikora received a referral to treat Mr. Warner,
which she refused. Doc. 1, at 8-10. Plaintiff further alleges that, despite her
knowledge of Mr. 	Warner’s serious and time-sensitive 	medical condition,
Defendant 	Sikora 	did 	not 	arrange 	alternative 	care 	for 	Mr. 	Warner 	or
communicate her refusal to care for him to the appropriate parties. Id. at 9-11.
Particular to the negligence claim, Plaintiff alleges Defendant Sikora failed to
“handle and monitor [Mr.] Warner’s medical care in an objectively reasonable
and prudent manner,” to provide him “reasonable medical care and access to
medical 	care 	given 	[his] 	appearance 	and 	condition,” 	and 	to 	“work 	and
communicate with the CCDC and other parties involved in [Mr.] Warner’s care
and detention in a reasonable, clear, and prompt manner.” Id. at 75-76. And
elsewhere, Plaintiff alleges Defendant Sikora “observed or interacted” with Mr.
Warner at an unspecified time before she refused the referral. Doc. 1, at 79.
While slim, the Court concludes Plaintiff’s allegations, which the Court
accepts as true and views in a light most favorable to Plaintiff, sufficiently
state a physician-patient relationship between Defendant Sikora and Mr.
Warner. Unlike in Jennings, Plaintiff alleges Defendant Sikora interacted with
Mr. Warner, observed his condition, and knew he needed access to care “given
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[his] appearance and condition.” Doc. 1, at 75. And, based on this relationship,
Defendant 	Sikora 	owed 	Mr. 	Warner 	a 	duty, 	as 	Plaintiff 	puts 	it, 	to 	not
“abandon” him without care. See Doc. 27, at 17-18 (citing Jackson v. Okla.
Mem. 	Hosp., 	909 	P.2d 	765, 	774 	(Okla. 	1995) 	(holding 	that, 	absent 	“an
emergency or special circumstances a physician is generally under the duty to
give a patient all necessary and continued attention as long as the case
requires it.”)). Under Oklahoma law, “[a] physician should not leave a patient
at 	a 	critical 	stage 	without 	giving 	reasonable 	notice 	or 	making 	suitable
arrangements for the attendance of another equally competent substitute.”
Jackson, 909 P.2d at 774. And the “[f]ailure to observe that professional
obligation may subject the physician to liability for patient abandonment.” Id.
It 	may 	well 	be 	that 	Defendant 	Sikora 	can 	prove 	that 	“special
circumstances” existed making it reasonable for her to decline to treat Mr.
Warner on that day. But at this early stage in the proceedings, the Court
should find Plaintiff has sufficiently alleged Defendant Sikora acted with
negligence. See, e.g., Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d
1022, 	1034 	(10th 	Cir. 2020) (“Although [the 	Court 	is] 	not sure 	whether
[Plaintiff] can prove each of [these] elements at trial or even survive summary
judgment, [she] allege[s] sufficient facts supporting each element for [her]
claim 	to 	proceed 	past 	the 	motion-to-dismiss 	stage.”). 	The 	undersigned
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therefore recommends the Court deny Defendant Sikora’s motion to dismiss
Plaintiff’s state-law negligence claim against her for failure to state a claim.
III. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant in part and deny in part Defendant Sikora’s motion to dismiss. Doc. 23.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court on or before
March 12, 2026, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2). The undersigned further advises the parties 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. See
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not dispose of all issues referred
to the undersigned Magistrate Judge in this matter.
ENTERED this 26th day of February, 2026.
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