5:24-cv-00178•Parker et al v. Lawton City of et al
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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). Defendants Ronnie Watkins, Timothy Scanlon, Savannah Freeman, and Axle Ocasio have filed a Motion to Dismiss with Brief in Support, Plaintiffs have responded, and Defendants have replied. (ECF Nos. 40, 44, 50). For the reasons set forth herein, the Court should: (1) grant Defendants’ Motion to Dismiss on the allegations of deliberate indifference as set forth in Claim One as to Defendants Scanlon, Freeman, and Ocasio; (2) conclude that Plaintiffs have stated a claim for deliberate indifference under the Fourteenth Amendment against Defendant Watkins as set forth in Claim One; and (3) grant Defendants’ Motion to Dismiss on the allegations of wrongful Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 1 of 16
2 death/negligence as set forth in Claim Five as to Defendants Watkins, Scanlon, Freeman, and Ocasio. I. PLAINTIFF’S 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 There was no indication that either officer explained to Mr. Parker what “Taliaferro” was. (ECF No. 1:6). At the question, 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). Upon being booked in, Mr. Parker was placed in isolation, because, according to Lawton City jailer Defendant Watkins, Mr. Parker “is kind of crazy.” (ECF No. 1:11). Despite such belief, Mr. Parker was never taken to a hospital or mental health 1 “Taliaferro” refers to the Jim Taliaferro Community Mental Health Center in Lawton, Oklahoma. Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 2 of 16
3 facility to be examined. (ECF No. 1:9). 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). When asked what had brought on Mr. Parker’s Death, Defendant Watkins allegedly stated that Mr. Parker had been “puking all night.” (ECF No. 1:11). Findings from the Medical Examiner state that Mr. Parker died from “acute water intoxication due to psychogenic polydipsia in setting of schizophrenia.” (ECF No. 1:10). II. MOTION TO DISMISS BY DEFENDANTS WATKINS, SCANLON, FREEMAN, AND OCASIO Against Defendants Watkins, Scanlon, Freeman, and Ocasio (Defendants), Plaintiffs allege two claims: (1) deliberate indifference to Plaintiff’s mental health needs in violation of the Fourteenth Amendment as set forth in Claim One and (2) negligence/wrongful death under Oklahoma State law as set forth in Claim Five. (ECF No. 1:12-15, 25-27). Defendants have filed a Motion to Dismiss both claims, arguing: (1) that Plaintiffs have failed to state a claim under the Fourteenth Amendment, (2) they are entitled to qualified immunity on the Fourteenth Amendment claim, and (3) they are exempt from liability pursuant to the Oklahoma Governmental Tort Claims Act. (ECF No. 40). Plaintiffs have responded and Defendants have replied. (ECF Nos. 44 & 50). The Court should grant Defendants’ Motion, in part, as discussed below. A. Standard Of Review Defendants Watkins, Scanlon, Freeman, and Ocasio seek dismissal under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 40). In ruling on Defendants’ motion, the court Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 3 of 16
4 “‘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) (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. Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 4 of 16
5 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). B. Qualified Immunity “Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)). “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Ullery v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Once a defendant has asserted a qualified immunity defense, the burden shifts to the plaintiff to establish that: (1) the defendant violated a constitutional right; and (2) the right was “clearly established” at the time of the defendant's alleged misconduct. Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020) (quoting Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016)). “[I]f the plaintiff fails to establish either prong of the two-pronged qualified-immunity standard, the defendant prevails on the defense.” A.M. v. Holmes, 830 F.3d 1123, 1134-35 (10th Cir. 2016); Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) (“[T]he record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.”) (internal quotation marks omitted). Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 5 of 16
6 “Although qualified immunity defenses are typically resolved at the summary judgment stage, district courts may grant motions to dismiss on the basis of qualified immunity.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). “Asserting a qualified immunity defense via a Rule 12(b)(6) motion, however, subjects the defendant to a more challenging standard of review than would apply on summary judgment.” Id. (quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)); see Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (“At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.”) (internal quotation marks omitted) (emphasis in original). C. The Fourteenth Amendment Claim As stated, in Claim One, Plaintiffs have alleged that Defendants were deliberately indifferent to Mr. Parker’s mental health needs in violation of the Fourteenth Amendment. See supra. To state this § 1983 claim against these Defendants, Plaintiffs must allege that each Defendant had personally participated in the alleged constitutional violation. Brown v. Montoya, 662 F.3d 1152, 1165 (10th Cir. 2011). To establish personal participation, a plaintiff must show how the defendant caused the deprivation of a federal right. Kentucky v. Graham, 473 U.S. at 159, 166 (1985). In other words, an affirmative link must exist between the alleged constitutional violation and the defendant’s participation, control, direction, or failure to supervise. Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151-52 (10th Cir. 2006). Further, “[t]o state a claim in federal court, a complaint must explain what each defendant did to [the plaintiff], when the defendant did it, how the defendant’s actions harmed him [ ]; and, what specific legal right the Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 6 of 16
7 plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Regarding Plaintiffs’ specific allegations of deliberate indifference to Mr. Parker’s mental health needs, the right to custodial medical care is well settled. See generally Estelle v. Gamble, 429 U.S. 97 (1976). “The Fourteenth Amendment’s Due Process Clause entitles pretrial detainees to the same standard of medical care that the Eighth Amendment requires for convicted inmates.” Lance v. Morris, 985 F.3d 787, 793 (10th Cir. 2021); see also Clark v. Colbert, 895 F.3d 1258, 1267 (10th Cir. 2018) (explaining the Eighth Amendment includes “an entitlement to a certain minimum standard of medical care while incarcerated”). “Although pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment, this Court applies an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002). Prison officials violate the Constitution when they act with “deliberate indifference to an inmate’s serious medical needs.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). “The deliberate indifference standard lies ‘somewhere between the poles of negligence at one end and purpose or knowledge at the other.’ ” Id. at 752 (quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)). The contours of constitutional liability under the deliberate indifference standard are familiar: there is both an objective and a subjective component. See Farmer, 511 U.S. at 834. “[T]he focus of the objective component is the seriousness of the plaintiff’s alleged harm, while the focus of the subjective component Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 7 of 16
8 is the mental state of the defendant with respect to the risk of that harm.” Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1044 (10th Cir. 2022). To satisfy the objective component, the plaintiff must produce evidence that the prisoner’s medical need was “sufficiently serious.” Farmer, 511 U.S. at 834 (citation omitted). “A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation marks omitted). A delay in medical care can also be sufficiently serious if “the delay resulted in substantial harm.” Mata, 427 F.3d at 751. “The substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Id. (internal quotation marks omitted). The subjective prong requires a plaintiff to establish that a prison official had “a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (internal quotation marks omitted). “In prison-conditions cases that state of mind is one of deliberate indifference to inmate health or safety.” Id. (internal quotation marks omitted). Deliberate indifference means “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. “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, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Mata, 427 F.3d at 752 Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 8 of 16
9 (citation omitted). “This is so because if a risk is obvious so that a reasonable man would realize it, we might well infer that the defendant did in fact realize it.” Id. (brackets and internal quotation marks omitted). But “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. In the Complaint, Plaintiffs allege that after Mr. Parker died, Defendant Watkins stated: (1) Mr. Parker had been in isolation “because he is kind of crazy” and (2) that Mr. Parker had been “puking all night” the night before he was found deceased. (ECF No. 1:11). Plaintiffs also allege that Defendants Watkins, Scanlon, Freeman, and Ocasio “knew that Mr. Parker was suffering from mental health issues and failed to perform timely and adequate checks on him in his isolation cell.” (ECF No. 1:12). Specifically, Plaintiffs allege that these Defendants knew Mr. Parker was “throwing up and screaming all night” and “took absolutely no steps whatsoever to help him.” (ECF No. 1:16). With this knowledge, Plaintiffs argue that Defendants exhibited deliberate indifference to Mr. Parker’s mental health needs by: (1) failing to provide him with “timely and adequate evaluation, observation, and treatment” and (2) disregarding their own internal policy to provide proper mental health treatment to Mr. Parker. (ECF No. 1:15-16). In their Motion to Dismiss, Defendants argue that Plaintiffs have failed to state a claim for deliberate indifference because Plaintiffs “lump all individual Defendants together and offer conclusory statements such as ‘Defendant Watkins, Brooks, Scanlon, Horne, Freeman, Ocasio, and all other jailers currently unknown, knew that Mr. Parker Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 9 of 16
10 was suffering from mental health issues and failed to perform timely and adequate checks on him in his isolation cell.’” (ECF No. 40:8). According to Defendants, Plaintiffs fail to allege: • What each of these Defendants knew about the Decedent; • What “risk of harm” each person was allegedly aware of; and • what “obvious signs of distress” each Defendant purportedly observed which would have put them on notice that Mr. Parkers was at risk of acute water intoxication. (ECF No. 40:8-9). According to Defendants, “the Complaint is devoid of any allegation of fact indicating that any of these Defendants directly participated in the alleged violations of the Decedent’s constitutional right to medical care.” (ECF No. 40:8). In response, Plaintiffs have alleged that the four Defendants were “the ones present when the Lawton City Police Department began their investigation the day Mr. Parker was found deceased and can be heard on body camera footage.” (ECF No. 44:9). But the only officers that Plaintiffs allege spoke on body camera footage regarding having specific knowledge related to the incident are Defendants Brooks and Watkins. See ECF No. 1:10-11.2 Here, the Defendants have alleged they are entitled to qualified immunity. See supra. As such, the plaintiff must allege facts that show the defendant, through personal participation, caused a violation of the plaintiff’s clearly established constitutional rights. 2 Plaintiffs allege that Defendant Scanlon was heard on body camera footage stating that Mr. Parker was still being detained in the jail because he refused to take a plea from the prosecutor. (ECF No. 1:8). But these allegations give no indication that Defendant Scanlon had direct knowledge of Plaintff’s mental health needs prior to his death. Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 10 of 16
11 Pahls v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013). Allegations of “personal participation in the specific constitutional violation complained of [are] essential,”3 because § 1983 imposes liability for a defendant’s “own individual actions.” Pahls, 718 F.3d at 1225 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). As noted by Defendants, the Court should find that the requisite specificity is lacking regarding the allegations as pled against Defendants Scanlon, Freeman, and Ocasio. Plaintiffs appear to name these four Defendants because they were employed at the jail and present on the scene when Mr. Parker’s death was being investigated. Based on this fact alone, Plaintiffs have argued that the Defendants “knew” Mr. Parker was suffering a mental health episode—throwing up and screaming all night; but these allegations are conclusory with regard to Defendants Scanlon, Freeman, and Ocasio, and are insufficient to state a claim. See Walker v. Mohiuddin, 947 F.3d 1244, 1250 (10th Cir. 2020) (“Merely lumping [a defendant] in with . . . other medical professionals under the generic label “defendants” . . . does not adequately plead a § 1983 claim against him.”); Shauf v. Rios, 313 F.Supp.3d 1262, 1269 (W.D. Okla. Mar. 2, 2018) (“[B]y alleging Appellants ‘knew or should have known’ of a risk, [the plaintiff] has merely recited an element of a claim without providing the facts from which one could draw such a conclusion.”) (citing Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013)). Even so, Plaintiff specifically alleges that Defendant Watkins stated that Plaintiff was “kind of crazy” and “puking all night” before he was found deceased the next day. 3 Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 11 of 16
12 (ECF No. 1:11). These allegations sufficiently allege that Defendant Watkins had knowledge of Mr. Parker’s mental health and subsequent mental and physical decline and disregarded the same. But Plaintiffs fail to offer any factual allegations that plausibly support such an inference that Defendants Scanlon, Freeman, or Ocasio had any knowledge of the specific mental or physical breakdown that Mr. Parker experienced prior to his death. In sum, the Court should conclude that the Complaint does not plausibly allege that Defendants Scanlon, Freeman, or Ocasio consciously disregarded Mr. Parker’s serious mental or physical health needs. As such, the Court should: (1) conclude that Defendants Scanlon, Freeman, and Ocasio are entitled to qualified immunity and dismissal on the Fourteenth Amendment claim as set forth in Ground One;4 (2) reject the argument for dismissal/qualified immunity as to Defendant Watkins, and (3) conclude that Plaintiffs have adequately stated a claim for relief against Defendant Watkins under the Fourteenth Amendment as set forth in Claim One through allegations of deliberate indifference to Plaintiff’s mental health needs.5 4 See Matthews v. Bergdorf, 889 F.3d 1136, 1144-45 (10th Cir. 2018) (relying on Pahls and Robbins to hold that once a defendant raises the defense of qualified immunity, a presumption of immunity arises which the plaintiff must rebut by demonstrating the complaint's “factual allegations established [its] right to recover against each” defendant). 5 In Plaintiffs’ Response to the Motion to Dismiss, Plaintiffs state: “Should the Court determine Plaintiffs failed to properly state any of their claims, Plaintiffs respectfully request leave to amend,” citing Federal Rule of Civil Procedure 15. See ECF No. 44:14. But the Court should deny this specific request, as the Tenth Circuit Court of Appeals has stated: “a bare request to amend in response to a motion to dismiss is insufficient to place the court and opposing parties on notice of the plaintiff’s request to amend and the particular grounds upon which such a request would be based. Albers v. Board of Cnty. Com'rs of Jefferson Cnty., Colo., 771 F.3d 697, 706 (10th Cir. 2014). Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 12 of 16
13 D. The Wrongful Death/Negligence Claim In Claim Five, Plaintiffs allege liability against Defendants Watkins, Scanlon, Freeman, and Ocasio for the wrongful death of Mr. Parker owing to negligence of jail officials. (ECF No. 1:25-26). These Defendants have moved to dismiss the state law claim, arguing that they are immune from liability under the Oklahoma Governmental Tort Claims Act (OGTCA). (ECF No. 40:11-13). The Court should agree and dismiss the wrongful death claim against Defendants Watkins, Scanlon, Freeman, and Ocasio. 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, No, 10-CV-GKF-FHM, 2014 WL 693443, at *4 (N.D. Okla. Feb. 21, 2014) ( citing 51 O.S. § 153(A)). Here, Plaintiffs have alleged liability against the Defendants on the wrongful death claim, stating that the Defendants: • “were negligent in failing to provide needed medical care to Mr. Parker allowing him to law unconscious in a pool of water on the floor of his cell for hours without help and without proper supervision from them;” and Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 13 of 16
14 • acted “within the course and scope of their employment with the City of Lawton.” (ECF No. 1:26) In moving for dismissal, Defendants invoke 51 O.S. § 153(C), which provides: “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[.]” (ECF No. 40:12).6 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 statement from that Court that “while this issue [of exemption from liability under the OGTCA] may be adjudicated upon consideration of a summary judgment motion, it cannot properly be determined in a motion to dismiss.” (ECF No. 44:14). But as noted by Defendant, in Pendergraft (and the cases it cites) the plaintiff pled both negligence and that the defendants had acted “with malice and bad faith.” See Pendergraft, 2019 WL 3806689, at *6. Thus, because the allegations against the defendants in Pendergraft could have conceivably fallen outside of the “scope of employment,”7 the Court could not resolve the issue of immunity under the OGTCA at the dismissal stage. But here, Plaintiffs have alleged only that Defendants acted in the scope of their employment. See supra. Although 6 Defendants also cite 51 O.S. § 163(C) which stands for the same proposition, stating: “In no instance shall an employee of the state or political subdivision acting within the scope of his employment be named as defendant[.]” 7 See 51 O.S. § 152(12) (“Scope of employment” means performance 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 equipment with actual or implied consent of the supervisor of the employee, but shall not include corruption or fraud[.]”). Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 14 of 16
15 an employee “may be named as defendant under alternative allegations that such person did not act within the scope of employment,”8 Plaintiffs have only and specifically alleged that Defendants acted “within the course and scope of their employment with the City of Lawton.” (ECF No. 1:26). As a result, Plaintiffs’ reliance on Pendergraft is inapposite and the Court should dismiss the allegations of negligence against Defendants Watkins, Scanlon, Freeman, and Ocasio as set forth in Claim Five. III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT Based upon the foregoing analysis, the Court should: (1) grant Defendants’ Motion to Dismiss on the allegations of deliberate indifference as set forth in Claim One as to Defendants Scanlon, Freeman, and Ocasio; (2) conclude that Plaintiffs have stated a claim for deliberate indifference under the Fourteenth Amendment against Defendant Watkins as set forth in Claim One; and (3) grant Defendants’ Motion to Dismiss on the allegations of wrongful death/negligence as set forth in Claim Five as to Defendants Watkins, Scanlon, Freeman, and Ocasio. 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 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). 8 51 Okla. Stat. § 153(C). Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 15 of 16
16 IV. STATUS OF REFERRAL This Report and Recommendation does not terminate the referral by the District Judge in this matter. ENTERED on September 26, 2024. Case 5:24-cv-00178-JD Document 59 Filed 09/26/24 Page 16 of 16
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