Parker et al v. Lawton City of et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FELISHA PARKER AND )
LARESHA PARKER, as Next of Kin )
to ISAAC PARKER, Deceased )
)
Plaintiff, )
)
vs. ) Case No. CIV-24-178-JD
)
CITY OF LAWTON, OKLAHOMA )
et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiffs Felisha and Laresha Parker (Plaintiffs), represented by counsel, bring
this action under 42 U.S.C. § 1983 and Oklahoma state law, alleging various civil rights
violations. (ECF No. 1). United States District Judge Jodi W. Dishman has referred this
matter to the undersigned magistrate judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B)-(C). Defendants Smith and Ratliff (Defendants) have filed a
Motion to Dismiss with Brief in Support, Plaintiffs have responded, and Defendants
have replied. (ECF Nos. 21, 52 & 53). For the reasons set forth herein, it is
recommended that Defendants’ motion be granted, in part, as discussed below.
I. PLAINTIFF’S COMPLAINT
This case presents a tragic set of circumstances resulting in the unfortunate
death of Issac Parker. On April 23, 2023, at approximately 7:00 pm, Lawton City police
officers, Defendants Halligan and Paterson, were dispatched to the Lawton City library
to assist in a public disturbance matter. (ECF No. 1:5). Upon their arrival at the scene,
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the officers found Mr. Parker, holding a bible, making statements to the effect that he
was the reincarnation of Quanah Parker, that white people were taking over Indian
lands, that he was being followed by eight cars, that the “federal bureau” was watching
them, and that a “satanic cult” existed in Lawton. (ECF No. 1:5-6). Officer Halligan
arrested Mr. Parker without resistance, and then asked Mr. Parker if he was a
“Taliaferro patient.” (ECF No. 1:6).1 Mr. Parker answered that he was “perfectly fine”
with “good health and everything.” (ECF No. 1:6).
Officers Halligan and Paterson proceeded to drive Mr. Parker to the Lawton City
Jail where he was booked in on one count of Disturbing the Peace, a misdemeanor
crime. (ECF No. 1:7). A complaint was drafted against Mr. Parker with a hand-written
note that his “PTC” (pretrial conference, presumably) would be May 16, 2023. (ECF
No. 1:8). The complaint did not indicate that whether Mr. Parker was ever given a
bond or allowed to speak to an attorney. (ECF No. 1:8). While at the jail, Mr. Parker
was placed in isolation, because, according to Lawton City jailer Defendant Watkins,
Mr. Parker “is kind of crazy.” (ECF No. 1:11). On June 3, 2023, forty-one days after he
was booked into jail, Mr. Parker was found deceased on the floor of his jail cell, lying
in a large pool of water. (ECF No. 1:9-10). Findings from the Medical Examiner state
that Mr. Parker had died from “acute water intoxication due to psychogenic polydipsia
in setting of schizophrenia.” (ECF No. 1:10).
1 “Taliaferro” refers to the Jim Taliaferro Community Mental Health Center in Lawton,
Oklahoma.
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As Defendants, Plaintiff has named, in part, James Smith, Chief of Police for the
City of Lawton and John Ratliff, Lawton City Manager; both in their individual and
official capacities. (ECF No. 1:1, 4). Against these Defendants, Plaintiffs allege three
claims: (1) deliberate indifference to Plaintiff’s mental health needs in violation of the
Fourteenth Amendment; (2) a violation of Mr. Parker’s Sixth Amendment right to
counsel; and (3) wrongful death/negligence under Oklahoma state law. (ECF No. 1:17-
21, 23-27).
II. MOTION TO DISMISS FILED BY DEFENDANTS SMITH AND RATLIFF
Defendants Smith and Ratliff have filed a Motion to Dismiss the claims against
them, arguing: (1) they are not proper parties in their official capacities on either the
state or federal claims; (2) they were improperly served in their individual capacities;
(3) Plaintiffs have failed to state a federal claim against them in their individual
capacities; (4) Plaintiffs have failed to state a claim under Oklahoma state law against
them in their individual capacities; and (5) they are entitled to qualified immunity on
the federal claims. (ECF No. 21). Plaintiffs have responded and Defendants have
replied. (ECF Nos. 52 & 53). The Court should: (1) dismiss the official capacity claims
and (2) quash the service on these Defendants in their individual capacities and allow
Plaintiffs an opportunity to effectuate proper service.
A. Official Capacity Claims
As stated, Plaintiffs assert liability against Defendants Smith and Ratliff in their
official capacities for violations of the Sixth and Fourteenth Amendments and under
Oklahoma state law.
See supra. According to the Defendants, the official capacity state
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law claims are improper under the Oklahoma Governmental Tort Claims Act (OGTCA)
and the official capacity federal law claims are duplicative of the claims against the
City of Lawton and should, therefore, be dismissed. (ECF No. 21:17-18). The Court
should agree.
1. State Law Claims
As argued by Defendants Smith and Ratliff, the OGTCA only permits claims
against the responsible government entity, not employees in their official capacities.
See ECF No. 21:16; Okla. Stat. tit. 51 § 163(C) (“Suits instituted pursuant to the
provisions of this act shall name as defendant the state or the political subdivision
against which liability is sought to be established.”);
see also Jackson v. City of Lawton,
No. CIV-23-284-G, 2023 WL 10448537, at *8 (W.D. Okla. Dec. 29, 2023) (noting that
under the OGTCA, official capacity claims are not permitted against individual
governmental employees);
Gilbreath v. Cleveland Cnty. Bd. of Cnty. Comm'rs, No. CIV-
11-1037-D, 2012 WL 2683133, at *10 (W.D. Okla. July 6, 2012) (rejecting claims
against sheriff in his official capacity and explaining that “[s]uits against county officials
or their appointees are construed under the GTCA as suits against the county”);
Pellegrino v. State ex rel. Cameron Univ. ex rel. Bd. of Regents of State of Okla., 63
P.3d 535, 537 (Okla. 2003) (“[D]esignating an employee in his or official capacity as a
named defendant for [a tort] claim [under the OGTCA] is improper ....” (quoting Okla.
Stat. tit. 51 § 163(C))). As a result, the Court should dismiss the official capacity claims
asserted against Defendants Smith and Ratliff under Oklahoma state law as set forth
in Claim Five.
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2. Federal Law Claims
As argued by Defendants Smith and Ratliff, the Court should dismiss the official
capacity federal law claims against them as set forth in Claims Two and Four as
duplicative.2
“[O]fficial-capacity suits generally represent only another way of pleading an
action against an entity of which an officer is an agent.”
Monell v. New York City Dep't
of Soc. Servs., 436 U.S. 658, 691 n.55 (1978). In other words, “[a] suit against a
municipality and a suit against a municipal official acting in his or her official capacity
are the same.”
Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988);
see
also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity.”). So, “[w]here
a plaintiff sues both a person in his official capacity and the entity, courts have
dismissed the official capacity claims as redundant.”
Gaines v. City of Moore, No. CIV-
20-851-D, 2021 WL 3284269, at *2 (W.D. Okla. July 30, 2021) (dismissing claims
against chief of police in his official capacity because they are redundant to claims
against the city) (collecting cases).
Here, in Claims Two and Four, Plaintiffs allege deliberately indifferent policies,
procedures, customs, training, supervision (and lack thereof) in violation of § 1983,
naming both the City of Lawton and Defendants Smith and Ratliff. (ECF No. 1:17-21,
2 In response to Defendants’ Motion to Dismiss, Plaintiffs “concede that the claims against
Smith and Ratliff in their official capacities might be redundant and duplicative because
Plaintiffs have also named the City of Lawton.” (ECF No. 52:8). Plaintiffs’ use of the word
“might” necessitates a discussion on the issue as it is not apparent whether Plaintiffs actually
concede the issue or not.
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23-25). But naming both the City of Lawton and Defendants Smith and Ratliff in their
official capacities in Claims Two and Four is redundant. As a result, Plaintiffs’ federal
claims against Defendants Smith and Ratliff in their official capacities should be
dismissed.
See Jackson v. City of Lawton, No. CIV-23-284-G, 2023 WL 10448537, at
*3 (W.D. Okla. Dec. 29, 2023) (recommending dismissal of official capacity claims
asserted against James Smith, as Lawton police chief, as redundant, because City of
Lawton had also been named as a defendant),
adopted, 2023 WL 10448537 (W.D.
Okla. Mar. 19, 2024).
B. Individual Capacity Claims
Defendants Smith and Ratliff seek dismissal on the individual capacity claims,
under Federal Rule of Procedure 12(b)(5) and 12(b)(6), arguing: (1) improper service;
(2) failure to state a claim; and (3) qualified immunity.
See supra. Plaintiffs have
responded and Defendants have replied. (ECF Nos. 52 & 53). The Court should quash
the service on these Defendants in their individual capacities and allow Plaintiffs an
opportunity to correct the defect.3
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.
3 Because service effectuates personal jurisdiction over the Defendants, the Court may not
consider Defendants’ remaining arguments. If service is properly obtained over Defendants
Smith and Ratliff in the future, they may file a dispositive motion, re-asserting their arguments.
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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).
Here, Plaintiffs concede the issue of improper service, and state that they have
reached out to Defendants’ counsel regarding filing a motion for leave to perfect
service, and are waiting on a reply from Defendants’ counsel, attaching an email as
proof.
See ECF No. 52:8. But as noted by Defendants’ counsel, no such email was
attached to the response.
See ECF No. 53:2; 52:8. Nonetheless, because Plaintiffs
have conceded the issue, the Court should find that service upon Defendants Smith
and Ratliff, in their individual capacities, was indeed improper.
Even so, 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
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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 Plaintiffs cannot
properly serve Defendants Smith and Ratliff in their individual capacities.4 Thus, the
Court should quash the original service on Defendants Smith and Ratliff in their
individual capacities, and allow Plaintiffs the opportunity to effectuate proper service
on these Defendants within thirty (30) days of any order adopting this
recommendation.
4 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 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). Furthermore, 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).
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III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, the Court should: (1) dismiss the official
capacity claims against Defendants Smith and Ratliff, as set forth in Claims Two, Four,
and Five; (2) quash the original service attempt on Defendants Smith and Ratliff in
their individual capacities; and (3) allow Plaintiffs 30 days to effectuate proper service
on Defendants Smith and Ratliff in their individual capacities or risk dismissal of the
claims against these Defendants.
The parties are advised of their right to file an objection to this Report and
Recommendation with the Clerk of this Court by October 25, 2024, in accordance
with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The parties are further advised that failure
to make timely objection to this Report and Recommendation waives the right to
appellate review of both factual and legal issues contained herein.
Casanova v. Ulibarri,
595 F.3d 1120, 1123 (10th Cir. 2010).
IV. STATUS OF REFERRAL
This Report and Recommendation does not terminate the referral by the
District Judge in this matter.
ENTERED on October 11, 2024.
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