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 ISACC D’WAYNE PARKER, Deceased, )
)
Plaintiff, )
)
v. ) 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 City of Lawton (City) has filed a Partial Motion to
Dismiss with Brief in Support, Plaintiffs have responded, and Defendant City has replied.
(ECF Nos. 20, 28, 31). For the reasons set forth herein, it is recommended that Defendant
City’s motion be granted, in part, as discussed below.
I. STANDARD OF REVIEW
Defendant City seeks dismissal under Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 20). 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
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favorable to . . . [P]laintiff.’”
Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014)
(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.
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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
sense.”
Iqbal, 556 U.S. at 679;
see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th
Cir. 2010) (discussing
Iqbal).
II. PLAINTIFFS’ COMPLAINT
This case presents a tragic set of circumstances resulting in the unfortunate death
of Isacc 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, 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 In response, 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
1 “Taliaferro” refers to the Jim Taliaferro Community Mental Health Center in Lawton, Oklahoma.
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complaint did not indicate 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).
Against Defendant City, 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). Defendant City has moved to
dismiss the latter two claims. (ECF No. 20).
III. DEFENDANT CITY’S MOTION TO DISMISS
Defendant City has filed a Motion to Dismiss the Sixth Amendment and wrongful
death claims against it, arguing: (1) Plaintiff has failed to state a Sixth Amendment claim
and (2) it is immune from liability on the wrongful death claim. (ECF No. 2). Plaintiffs
have responded and Defendant City has replied. (ECF Nos. 28 & 31). The Court should
grant Defendant City’s Motion to Dismiss, but only with respect to the wrongful death
claim.
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A. The Sixth Amendment Claim
In Claim Four, Plaintiffs allege liability against the City of Lawton for violating Mr.
Parker’s Sixth Amendment right to counsel. (ECF No. 1:23-25). Defendant City has moved
to dismiss the claim, but the Court should deny the motion.
1. The Sixth Amendment and Related Municipal Liability
The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused
shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const.
Amend VI. Indeed, the United States Supreme Court has stated that: “an accused is at
the very least entitled to have his . . . counsel present, no matter with what offense he
may be charged.”
In re Oliver, 333 U.S. 257, 272 (1948);
see Argersinger v. Hamlin, 407
U.S. 25, 33 (1972) (“The requirement of counsel may well be necessary for a fair trial
even in a petty-offense prosecution. We are by no means convinced that legal and
constitutional questions involved in a case that actually leads to imprisonment even for a
brief period are any less complex than when a person can be sent off for six months or
more.”).
To establish municipal liability under § 1983, a plaintiff must demonstrate: “(1) an
official policy or custom, (2) causation, and (3) deliberate indifference.”
Crowson v.
Washington Cnty. Utah, 983 F.3d 1166, 1184 (10th Cir. 2020). Municipal-liability claims
also require a plaintiff to establish an underlying constitutional violation.
Id. at 1186 (“[A]
a claim under § 1983 against ... a municipality cannot survive a determination that there
has been no constitutional violation.”). In most cases,” that means a municipality’s liability
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under
Monell “depend[s] on whether a
specific municipal officer violated an individual's
constitutional rights.”
Id. at 1191 (emphasis added). But when a municipal-liability claim
is premised on the municipality’s “systemic failure[s],” no single individual defendant need
be found liable.
Id. at 1192. Rather, “the combined acts or omissions of several employees
acting under a governmental policy or custom may violate an individual’s constitutional
rights.”
Id. at 1186 (quoting
Garcia v. Salt Lake Cnty., 768 F.2d 303, 310 (10th Cir.
1985)).
The existence of a policy or custom can be established many different ways,
including demonstrating the existence of:
(1) a formal regulation or policy statement; (2) an informal custom
amounting to a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled as
to constitute a custom or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the ratification by such
final policymakers of the decisions—and the basis for them—of subordinates
to whom authority was delegated subject to these policymakers' review and
approval; or (5) the failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference to the injuries that
may be caused.
Id. at 784.
Importantly, “a municipal policy” includes “not only policy statements, ordinances,
and regulations but [also] the individual decisions of city officials who have ‘final policy
making authority.’ ”
David v. City and Cty. of Denver, 101 F.3d 1344, 1357 (10th Cir.
1996) (citation omitted). Municipal policy also includes instances where the “authorized
policymakers approve a subordinate’s decision and the basis for it.”
Moss v. Kopp, 559
F.3d 1155, 1169 (10th Cir. 2009). In other words, “their ratification will be chargeable to
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the municipality.”
Id. Similarly, a custom is a practice that is so “continuing, persistent,
and widespread” that it has “the force of law.”
Carney v. City and Cty. of Denver, 534
F.3d 1269, 1274 (10th Cir. 2008). Custom can be established by “a series of decisions by
a subordinate official ... of which the supervisor must have been aware.”
City of St. Louis
v. Praprotnik, 485 U.S. 112, 130 (1988);
Mitchell v. City & Cty. of Denver, 112 F. App’x
662, 672 (10th Cir. 2004) (unpublished).
To “establish the causation element, the challenged policy or practice must be
‘closely related to the violation of the plaintiff’s federally protected right.’”
Schneider v.
City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013). “This requirement
is satisfied if the plaintiff shows that ‘the municipality was the “moving force” behind the
injury alleged.’ ”
Id. (quoting
Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403–04
(1997)). The requirement to show this direct causal link is “stringent,” and courts must
“carefully test the link between the policymaker’s inadequate decision and the particular
injury alleged.”
Brown, 520 U.S. at 410.
Finally, “[t]he 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.”
Id. (quoting
Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th
Cir. 1998)). Plaintiffs generally establish notice “by proving the existence of a pattern of
tortious conduct.”
Id. (quoting
Barney, 143 F.3d at 1307). “[W]hen policymakers have
actual or constructive notice that a training deficiency caused city employees to commit
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constitutional violations, the city may be deliberately indifferent if it chooses to maintain
its deficient training program.”
George, on behalf of Bradshaw v. Beaver Cnty., by and
through Beaver Cnty. Board of Commissioners, 32 F.4th 1246, 1253 (10th Cir. 2022).
Ordinarily, a plaintiff must prove a pattern of untrained employees’ constitutional
violations to show deliberate indifference.
Id. “Evidence of a pre-existing pattern of
violations is only unnecessary in a narrow range of circumstances . . . in which the
unconstitutional consequences of a failure to train are highly predictable and patently
obvious.”
Id.
2. The Parties’ Arguments
In the Complaint, Plaintiffs reference the one-page complaint filed against Mr.
Parker which was silent on the issue of whether he had been appointed an attorney for
his initial appearance on April 24, 2024. (ECF No. 1:8). Plaintiffs then cite law relating to
Mr. Parker’s Sixth Amendment right to counsel and state that the City “created an
environment of vagrant [sic] constitutional violations which directly harmed Mr. Parker,”
namely, that the City is “responsible for maintaining the City of Lawton Jail, the policies
and procedures in place, and the training received by staff . . . [and] should have arranged
for the appointment of an attorney for Mr. Parker[.]” (ECF No. 1:8, 25).
In its Motion to Dismiss, Defendant City has argued that Plaintiffs have failed to
allege: (1) that Mr. Parker’s right to counsel was caused by any policy, practice, or custom
attributable to the City; (2) an affirmative link between any policies or procedures of the
jail or training of jail staff and the alleged denial Mr. Parker’s right to counsel; and (3)
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that any official with final policymaking authority personally participated in allegedly
violating Mr. Parker’s right to counsel. (ECF No. 20:7). The Court should reject these
arguments.
First, in its response, Plaintiffs argue the City maintains an “unwritten custom
promulgated by the City to deny pretrial detainees the right to counsel and a decision of
those with final policymaking authority to specifically not guarantee this right to the
poorest and most vulnerable individuals in the city of Lawton.” (ECF No. 28:15). Plaintiffs
further explain that the “policy” in this case takes two forms: (1) an “unwritten custom
promulgated by the City to deny pretrial detainees the right to counsel,” as evidenced by
the lack of a written policy regarding appointment of counsel for jail detainees and (2) a
lack of training for jail staff on this issue, resulting from the City’s deliberate indifference
to Mr. Parker’s right to counsel. (ECF No. 28:13-17, 20-21).
In its reply, the City argues that Plaintiffs, by their response regarding “policy,”
have relied on “new factual allegations which were not contained in the Complaint,” which
is improper in a response brief to avoid dismissal. (ECF No. 31:2-3). The Court should
agree, but only regarding Plaintiffs’ claims relating to a failure to train. In the Complaint,
Plaintiff alleged that the City of Lawton created an environment that resulted in a violation
of Mr. Parker’s Sixth Amendment right to counsel.
See ECF No. 1. Although Plaintiff
explicitly referred to the City’s alleged failure to train jail staff on the deliberate
indifference claim (see Claim Two), Plaintiffs failed to extend this argument to the Sixth
Amendment claim (see Claim Four). Absent a recognized exception to the rule, “a federal
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court may only consider facts alleged within the complaint” when ruling on a Rule
12(b)(6) motion.
See Cty. of Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031,
1035 (10th Cir. 2002);
see also Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995) (“It
is well-established, however, that in determining whether to grant a motion to dismiss,
the district court, and consequently this court, are limited to assessing the legal
sufficiency of the allegations contained within the four corners of the complaint.”).
Defendant City also takes issue with Plaintiffs’ reliance on the absence of language
relating to appointment of counsel in the Lawton Municipal Code, stating that such
allegation “is insufficient to support an inference that the City of Lawton has a custom of
denying pretrial detainees the right to counsel.” (ECF No. 31:4). But the absence of
precise language in the municipal code is not the issue—Plaintiffs have simply cited this
as an example of the allegedly widespread custom existing at the Lawton Jail to deny
pretrial detainees counsel which involves a lack of written policy. In sum, the Court should
conclude that Plaintiff has sufficiently pled “policy” in their municipal liability claim—but
only with respect to a “custom” of violating the Sixth Amendment rights of pretrial
detainees, and not through a failure to train jail staff on this issue.
For causation, Plaintiffs contend that the City’s custom of housing pretrial
detainees facing jail time without providing court appointed counsel and failure to train
jail staff regarding a pretrial detainee’s right to counsel resulted in a violation of Mr.
Parker’s Sixth Amendment right to counsel. (ECF No. 28:18). Appointment of counsel,
according to Plaintiffs “likely would have saved Mr. Parker’s life.” (ECF No. 28:18-19).
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Instead, however, “Mr. Parker was left to face and unfamiliar court system while suffering
from a mental health crisis and being held in isolation, furthering his mental decline.”
(ECF No. 28:19). The Court should conclude that these allegations sufficiently plead the
element of causation necessary in a municipal liability claim.
Finally, regarding personal participation, Plaintiffs state:
It was not the action of one specific jailer or employee of the City of Lawton
that placed Mr. Parker in isolation for over thirty days without the guidance
of court appointed counsel. It was not the action of one specific jailer or
employee that gave Mr. Parker a Pretrial Conference Date of May 16, 2023.
It was not the action of one specific jailer to prosecute Mr. Parker with no
attorney to provide him with guidance (like demanding a speedy trial) while
being held in custody and facing jail time. It is a custom and policy of the
City itself to hold indigent individuals, like Mr. Parker, on an unreasonable
bond or on no bond at all while he awaits an eventual trial date.
(ECF No. 28:16-17). As stated, when a municipal-liability claim is premised on the
municipality’s “systemic failure[s],” no single individual defendant need be found liable.
See supra,
Crowson at 1192. Thus, the Court should reject the City’s argument regarding
a lack of personal participation by any official with final policymaking authority.
In sum, the Court should: (1) deny Defendant City’s Motion to Dismiss the Sixth
Amendment Claim and (2) conclude that Plaintiffs have stated a municipal liability claim
under the Sixth Amendment against the City of Lawton, premised only on a custom of
denying pretrial detainees a right to counsel, and not on a failure to train jail staff.2
2 In Plaintiffs’ response to the Defendant City’s Motion to Dismiss, they reference a violation of
Mr. Parker’s right to a speedy trial. See ECF No. 28. But Plaintiffs have not alleged a Sixth
Amendment claim for violation of Mr. Parker’s right to a speedy trial, only that his Sixth
Amendment rights were violated to due a lack of counsel.
See ECF No. 1:23-25.
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B. Wrongful Death (Negligence) Claim
In Claim Five, Plaintiffs allege liability against the City of Lawton for the wrongful
death of Mr. Parker owing to negligence of jail staff. (ECF No. 1:25-26). Defendant City
has filed a Motion to Dismiss stating that it is immune from liability on this claim, arguing
that the Oklahoma Governmental Tort Claims Act (OGTCA) provides the exclusive
remedy. (ECF No. 20:8-10). The Court should agree and dismiss the wrongful death claim
against the City of Lawton.
The OGTCA reaffirms sovereign immunity of the state, its political subdivisions,
and employees acting within the scope of their employment.
See 51 O.S. § 152.1(A)
(recognizing immunity from tort liability for “the state, its political subdivisions, and all of
their employees acting within the scope of their employment.”). The state and its political
subdivisions may consent to suit only to the extent and in the manner provided in the
OGTCA.
Id. at § 152.1(B). Additionally, “Section 153 of the OGTCA provides that a
municipality is liable for loss resulting from the torts of its employees acting within the
scope of their employment.”
Lawrence v. City of Owasso, 2014 WL 693443, at *4 (N.D.
Okla. Feb. 21, 2014) (
citing 51 Okla. Stat. § 153(A)). However, Section 155(25) of the
OGTCA provides that the state or its political subdivisions
will not be liable if a loss or
claim results from “[p]rovision, equipping, operating or maintenance of any prison, jail
correctional facility, or injuries resulting from the parole or escape of a prisoner or injuries
by a prisoner to any other prisoner ...” 51 O.S. at § 155(25).
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Defendant City seeks dismissal of Plaintiffs’ negligence claim pursuant to Section
155(25), arguing: “Plaintiffs’ state law claims against the Defendant all relate to the
provision of medical care to the Decedent in the Lawton City Jail and the employment of
jail staff and thus, arise in the context of the operation of the jail[.]” (ECF No. 20:10).
In response, Plaintiffs argue that a dismissal of the City based on immunity under the
OGTCA would be premature at this stage because “Plaintiffs also have claims directly
against the two arresting officers in this case based on Mr. Parker’s arrest.” (ECF No.
28:22). In making this argument, Plaintiffs rely on
Hoeppner v. Head, No. CV-20-299-
RAW, 2022 WL 5212919 (E.D. Okla. Oct. 4, 2022) wherein the court left open the
possibility of liability against a City under the theory of respondeat superior on a claim for
wrongful death under Oklahoma law notwithstanding the OGTCA.
See ECF No. 28:23-24.
According to Plaintiffs, because of the pendency of claims against Officers Halligan and
Paterson “it is too early in litigation to determine what factual issues might lead a trier of
fact to determine liability on the part of the City[.]” (ECF No. 28:23). But as noted by
Defendant City, there is no pending claim against the arresting officers for wrongful
death.
See ECF No. 1. Therefore, even under
Hoeppner, the City could not be liable under
the doctrine of respondeat superior for any claims against Officers Halligan and Paterson.
In this case, the actions of various jail staff and City employees as set forth in the
wrongful death claim relate to the alleged failure/deliberate indifference to providing Mr.
Parker proper medical care while in jail. (ECF No. 1:25-27). These actions fall squarely in
the purview of the exception as set forth in Section 155(25). As a result, the Court should
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grant Defendant City’s Motion to dismiss and dismiss the wrongful death claim as asserted
against the City of Lawton in Claim Five.
See De Verges v. Board of Cnty. Commissioners
of Pawnee, 591 F.Supp.3d 1066, 1069 (N.D. Okla. Mar. 11, 2022) (noting that the act of
failing to check on jail inmate who killed herself with a handgun that was not found on
her person when she was booked in jail “f[ell] under the umbrella of operating and
maintaining a jail,” resulting in immunity to the Board of County Commissioners on
wrongful death claim under the exemption found in Section 155(25));
Sanders v. Creek
Cnty. Board of Cnty. Commissioners, No. 17-CV-492-JHP-FHM, 2018 WL 3580770, at *9
(N.D. Okla. July 25, 2018) (noting that in wrongful death claim, Section 155(25) provided
immunity to City Jail for actions of jail employees and agents in failing to provide proper
medical care to jail inmate who ultimately died while in jail).
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, the Court should: (1) deny Defendant City of
Lawton’s Motion to Dismiss the Sixth Amendment Claim as set forth in Claim Four; (2)
conclude that Plaintiffs have stated a municipal liability claim under the Sixth Amendment
against the City of Lawton, premised only on a custom of denying pretrial detainees a
right to counsel and not on a failure to train jail staff; and (3) grant Defendant City of
Lawton’s Motion to Dismiss the wrongful death/negligence claim as set forth in Claim
Five.
The parties are advised of their right to file an objection to this Report and
Recommendation with the Clerk of this Court by October 15, 2024, in accordance with
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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).
V. STATUS OF REFERRAL
This Report and Recommendation does not terminate the referral by the District
Judge in this matter.
ENTERED on September 26, 2024.
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