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 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, Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 1 of 9
2 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. Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 2 of 9
3 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 Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 3 of 9
4 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. Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 4 of 9
5 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. Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 5 of 9
6 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. Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 6 of 9
7 344, 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 Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 7 of 9
8 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). Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 8 of 9
9 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. Case 5:24-cv-00178-JD Document 62 Filed 10/11/24 Page 9 of 9
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