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). Defendant James Ratliff has filed a Partial Motion to Dismiss
with Brief in Support, Plaintiffs have responded, and Defendant Ratliff has replied. (ECF
Nos. 95, 98, 100). For the reasons set forth herein, it is recommended that Defendant
Ratliff’s motion be DENIED.
I. STANDARD OF REVIEW
Defendant Ratliff seeks dismissal under Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 95). In ruling on Defendant’s motion, the court “‘must accept all the well-
pleaded allegations of the complaint as true and must construe them in the light most
favorable to . . . [P]laintiff.’”
Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014)
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(citation omitted). To survive dismissal, Plaintiff's “complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Plausible” in this context
does not mean “likely to be true,” but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,” then
the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.”
Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves
not only to weed out claims that do not (in the absence of additional allegations) have a
reasonable prospect of success, but also to inform the defendants of the actual grounds
of the claim against them.”
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
“The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility. . . .”
Iqbal, 556 U.S. at 662 (internal quotation marks and citation
omitted).
A complaint fails to state a claim when it lacks factual allegations sufficient “to
raise a right to relief above the speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555. (footnote
and citation omitted). Bare legal conclusions in a complaint are not assumed to be true;
legal conclusions “must be supported by factual allegations” to state a claim upon which
relief may be granted.
Iqbal, 556 U.S. at 662.
Whether a complaint contains sufficient facts to avoid dismissal is context-specific
and is determined through a court’s application of “judicial experience and common
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sense.”
Iqbal, 556 U.S. at 679;
see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th
Cir. 2010) (discussing
Iqbal).
II. THE COURT SHOULD DENY THE PARTIAL MOTION TO DISMISS
In the Complaint, Plaintiff alleges:
Defendant Ratliff, individually and as the final policymaker for the City of
Lawton, had a duty to provide necessary medical care to Mr. Parker during
the time he was detained at the Lawton City Jail. All of [Defendant] Ratliff’s
acts and omissions were performed under color of law and within the course
and scope of his employment with the City of Lawton.
. . .
Plaintiffs are entitled to punitive damages on claims brought against
individual Defendants on state law claims where said individual Defendants
were acting outside the scope of their employment, as Defendants’ conduct,
acts, and omissions alleged herein constitute reckless or callous indifference
to Mr. Parker’s protected rights.
(ECF No. 1:26).
In his Partial Motion to Dismiss, Defendant Ratliff argues that he is immune from
suit on the state law negligence claim as set forth in Claim Five because he is immune
from the lawsuit under the Oklahoma Governmental Tort Claims Act (OGTCA),
specifically, Okla. Stat. tit. 51 §§ 153(C), 163(C), and 155(25). (ECF No. 95:4-8).
Defendant Ratliff’s argument is two-fold. First, he alleges immunity under Sections
153(C) and 163(C) which provide, respectively:
In no instance in any such action shall an employee of the state or
of a political subdivision of the state acting within the scope of
employment be named as defendant; provided, however, such person
may be named as defendant under alternative allegations that such person
did not act within the scope of employment.
. . .
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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. In no instance shall an employee of the
state or political subdivision acting within the scope of his
employment be named as defendant with the exception that suits
based on the conduct of resident physicians and interns shall be made
against the individual consistent with the provisions of Title 12 of the
Oklahoma Statutes.
Okla. Stat. tit. 51, §§ 153(C) & 163(C) (emphasis added). Because Plaintiff alleged that
Defendant Ratliff had acted “within the course and scope of his employment with the City
of Lawton,” Defendant Ratliff argues that he is immune from the lawsuit in his individual
capacity under Sections 153(C) and 163(C). In response, Plaintiffs cite
Pendergraft v. Bd.
of Regents of Oklahoma Colleges, No. CV-18-793-D, 2019 WL 3806639, at *6 (W.D. Okla.
Aug. 13, 2019), for the proposition that “whether or not a defendant was acting
maliciously or in bad faith cannot be properly determined in a motion to dismiss, and
instead, is appropriate for summary judgment.” (ECF No. 98:4). Plaintiffs also cite the
fact that they had also alleged that if Defendant Parker was acting outside the scope of
his employment, his behavior would constitute reckless or callous indifference to Mr.
Parker’s rights and “alternative pleading is allowed per Federal Rule of Civil Procedure
8(d).” (ECF No. 98:4-5);
see ECF No. 1:28. The Court should agree with Plaintiffs.
Under the doctrine of
respondeat superior, “an employer is generally held liable
for the willful acts of an employee acting within the scope of employment.”
Gowens v.
Barstow, 2015 OK 85, ¶ 12, 364 P.3d 644, 650. The OGTCA defines “scope of
employment” as:
[P]erformance by an employee acting in good faith within the duties of the
employee’s office or employment or of tasks lawfully assigned by a
competent authority including the operation or use of an agency vehicle or
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equipment with actual or implied consent of the supervisor of the employee,
but shall not include corruption or fraud.
51 Okla. Stat. § 152(12). “[O]ne acts within the scope of employment if engaged in work
assigned, or if doing that which is proper, necessary and usual to accomplish the work
assigned, or doing that which is customary within the particular trade or business.”
Gowens, 2015 OK 85, ¶ 12, 364 P.3d at 650 (citing
Nail v. City of Henryetta, 1996 OK 12,
¶ 11, 911 P.2d 914, 917). However, an employee “may be named as defendant under
alternative allegations that such person did not act within the scope of employment.” 51
Okla. Stat. § 153(C). “For an officer to be deemed outside the scope of employment due
to a lack of good faith, there must be ‘acts that clearly show malice or bad faith.’ The
Oklahoma Supreme Court has held that mere ‘reckless disregard’ for the rights or safety
of others does not satisfy this standard.”
Graham v. City of Lone Grove, Oklahoma, 2022
WL 2070607, at *6 (E.D. Okla. June 8, 2022) (quoting
Gowens, 2015 OK 85, ¶¶ 20-21,
364 P.3d at 652);
see also Mustain v. Grand River Dam Auth., 2003 OK 43, ¶ 21, 68 P.3d
991, 999,
as corrected (Apr. 23, 2003),
as corrected (May 7, 2003) (“An employee whose
acts are malicious, willful, wanton and in bad faith is not acting in the scope of his
employment.”).
“Although an employee acts outside the scope of employment where they engage
in willful and wanton conduct, acts performed with reckless disregard do not necessarily
equate to bad faith and fall outside the scope of employment.”
Higginbottom v. Mid-Del
Sch. Dist., 2016 WL 951691, at *4 (W.D. Okla. Mar. 9, 2016) (citation omitted). “[E]ven
willful acts of employees causing serious harm may occur within the scope of employment
if incident to the employer’s services or to an attempt to perform those services.”
Deal v.
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Brooks, 2016 OK CIV APP 81, ¶ 36, 389 P.3d 375, 386. Whether an employee was acting
within the scope of his employment “is normally a question for the jury, except in cases
where only one reasonable conclusion can be drawn from the facts.”
Nail, 1996 OK 12, ¶
13, 911 P.2d at 918;
see also Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶ 8, 212
P.3d 1158, 1163 (“Except in cases where only one reasonable conclusion can be drawn,
the question of whether an employee has acted within the scope of employment at any
given time is a question for the trier of fact.”). As previously noted, Plaintiff is entitled to
plead in the alternative.
See, e.g., Gaines v. City of Moore, 2022 WL 1913447, at *7 (W.D.
Okla. June 3, 2022) (“That they have pleaded Lloyd acted intentionally to violate City
policies does not mean Plaintiffs are foreclosed from asserting Lloyd acted within the
scope of his employment, regardless of whether those assertions contradict each other
or not.”) (citing	
Boulware v. Baldwin, 545 Fed. Appx. 725, 729 (10th Cir. 2013)
(unpublished) (“Federal pleading rules have for a long time permitted the pursuit of
alternative and inconsistent claims.”).
Accordingly, “the issue ‘hinge[s] on whether one acted within the scope of
employment
by engaging in work assigned, or if doing what was proper, necessary and
usual to accomplish the work assigned, or doing that which was customary within the
particular trade or business.’ ”
Deal, 2016 OK CIV APP 81, ¶ 35, 389 P.3d at 386 (quoting
Bosh v. Cherokee Cty. Bldg. Auth., 2013 OK 9, ¶ 29, 389 P.3d 375, 385-386 (
superseded
by statute)). In this case, Plaintiff alleges that Defendant Ratliff acted within the course
and scope of his employment with the City of Lawton or, alternatively, acted outside the
scope of his employment, by “acting with reckless or callous indifference to Mr. Parker’s
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protected rights.”
See supra. Although the alternative nature of the claims could have
been better drafted, Plaintiff propounded sufficient alternative factual allegations in the
Complaint to “ ‘raise an inference of bad faith sufficient to withstand dismissal pursuant
to the [GTCA].’ ”
Doe v. Oologah-Talala Indep. Sch. Dist., 2022 WL 17406372, at *11
(N.D. Okla. Dec. 2, 2022) (quoting
Romero v. City of Miami, 8 F. Supp. 3d 1321, 1333
(N.D. Okla. 2014) (citing
Gowens, 2015 OK 85, ¶ 21, 364 P.3d at 652 (rejecting the
proposition that “malice or bad faith can never be inferred from conduct exhibiting
reckless disregard for the rights of others”);
Shepard v. CompSource Okla., 2009 OK 25,
¶ 16, 209 P.3d 288, 293 (“[A]cts contrary to the interests of the employer are not within
the scope of employment.”)).
Additionally, as argued by Plaintiff, the scope of employment issue may only be
adjudicated upon consideration of a summary judgment motion, and “cannot properly be
determined in a motion to dismiss.”
Doe, 2022 WL 17406372, at *12 (quoting
Pendegraft
v. Bd. of Regents of Okla. Colls., 2019 WL 3806639, at *6 (W.D. Okla. Aug. 13, 2019)).
Thus, at this stage, the Court should find that dismissal is not appropriate as to Defendant
Ratliff on Claim Five, based on Plaintiff's alternative pleadings that Defendant Ratliff may
have been acting outside the scope of his employment.
See Martinez v. Sellers, No. CIV-
23-102-RAW-GLJ, 2024 WL 3572966, at *8–9 (E.D. Okla. May 29, 2024) (denying a
defendant’s motion to dismiss which was premised on the plaintiff’s allegations that
defendant had acted in the scope of employment and was therefore, immune under the
OGTCA, when the plaintiff had alternatively pled that the defendant may have acted
outside the scope of employment).
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Defendant Ratliff’s second argument is that he is immune from the state law
negligence claim under Okla. Stat. tit. 51, § 155(25), which provides: “The state or a
political subdivision shall not be liable if a loss or claim results from . . . [the] [p]rovision,
equipping, operation or maintenance of any prison, jail or correctional facility[.]” Okla.
Stat. tit. 51, § 155(25).
Relevant here, the Oklahoma Supreme Court has explained that this exemption,
applies to “failures to enforce institutional policies,” “discretionary functions [that] are
limited to policy-making or planning level actions,” and “operational level actions by state
officers or employees at a penal institution.”
Medina v. State, 871 P.2d 1379, 1383-84
(Okla. 1993);
see also Lucas v. Turn Key Health Clinics; LLC, 58 F.4th 1127, 1147 (10th
Cir. 2023) (“An employee of the state or its political subdivision who operates or maintains
a jail or correctional facility is exempt from state tort liability under the OGTCA.”).
However, the Court should not definitively apply the exception when the question
remains, at this stage, regarding whether Defendant Ratliff had acted within or outside
of the scope of his employment.
See Garland v. Oklahoma ex rel. Oklahoma Department
of Corrections, 2021 WL 1857408, at *2 (E.D. Okla. May 10, 2021) (denying motion to
dismiss which had argued immunity under Section 155(25) because an issue of fact
remained whether the defendant had been acting inside or outside of the scope of
employment).
III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing, the Court should DENY Defendant Ratliff’s Partial
Motion to Dismiss (ECF No. 95).
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The parties are advised of their right to file an objection to this Report and
Recommendation with the Clerk of this Court by November 13, 2025, in accordance
with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner is 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 30, 2025.
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