Date: 01-07-2013

Case Style: Dionne A. McKinney v. John Whetsel

Case Number: CJ-2007-586

Judge: Lisa T. Davis

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Aletia Haynes Timmons and Greg Haubrich

Defendant's Attorney: Richard N. Mann and Sandra Howell-Elliott

Description: Dionne A. McKinney sued John Whetsel, individually and in his official capacity as Sheriff of Oklahoma County, State of Oklahoma and the Board of County Commissioners of the County of Oklahoma claiming that:

1. This court has jurisdiction over this action and venue is proper in Oklahoma County.

2. This action is an action for negligence and various tort claims which occurred at the Oklahoma County Detention Center. Plaintiff is a resident of Oklahoma County.

3. Plaintiffs federal claims were dismissed by the United States District Court for the Western District of Oklahoma, Case No. CIV 04-1039 on May 11,2006 and the court declined to exercise pendant jurisdiction of those claims. This case has been refilled with regard to the state claims.

4. The defendants have acted or refhsed to act to the detriment of the Plaintiff, thereby making final injunctive relief and corresponding declaratory relief appropriate in this case.

COUNT I - NEGLIGENT SUPERVISION AND RETENTION

Paragraphs 1-4 are incorporated by reference.

5. At all times hereunder, the actions of the Defendants in connection with the maintenance, running and operation of the jail were done under the pretense of statute, ordinance, regulation, customs and usage of the State of Oklahoma in such a manner as to constitute and condone practices and policies which deprived Plaintiff of her rights secured under the laws of the State of Oklahoma.

6. This is required and mandated upon the Sheriff and the County Commissioners by State law and pursuant to the standards adopted by and regulations of the Oklahoma State Department of Health pursuant to 740.S. § 192.

7. Plaintiff suffered damages as a result ofthe failure or outright refusal ofjail personnel to promptly and appropriately respond to legitimate and serious concerns repeatedly expressed to jail personnel regarding Plaintiffs medical needs. This negligent failure or refusal to respond to Plaintiffs serious medical injuries resulted in pain and injuries to Plaintiff

8. Plaintiff was in the Oklahoma City Detention Center for approximately 24 hours, during which time the Plaintiff suffered a broken toe and contusions and injuries to her shoulder and head.

9. Despite Plaintiffs repeated request for medical attention and request to speak to ajail supervisor, she was ignored.

10. Plaintiff was given no prisoners’ rights handbook, was not given anymedical request forms, request to staff forms and was kept in the temporary holding cell for the majority of her limited incarceration, with no shirt and no bra..

11. At no time did jail personnel or staff provide Plaintiff with the means or mechanism to file a grievance, which is in violation of the State Jail Standards.

COUNT 11-INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Paragraphs 1-11 are incorporated by reference.

12. Plaintiff was an inmate of the Oklahoma County Detention Center and was an inmate in the jail at all times referenced herein.

13. On or about May 25, 2003, Plaintiff was arrested on a City charge. While being booked into the Oklahoma Countyjail, she was beaten without provocation by detention officers one of whom was Angela Cummings. During the beating she was kicked, punched, her head and body were slammed into the concrete wall, and her genitals were exposed. Plaintiff sustained a broken toe, a head injury, bleeding about her face, and strained ligaments in her shoulder.

14. Plaintiff reported her injuries, was bleeding and disoriented, yet she received no medical care. The guards were completely unresponsive to Plaintiffs needs and nothing was done to insure Plaintiff’s receipt of medical care or that her concern was addressed despite the fact that supervisors were present.

15. Plaintiff was placed in a holding cell without a bra and shirt and was taunted by the detention officers about her nakedness in front of the prisoners.

16. As a result of her brutalization, when Plaintiff was released from the jail, she was disoriented, in pain and on heavy medication. She also was diagnosed with post-traumatic stress disorder and was hospitalized for this condition.

17. As a result of the Defendants’ conduct, Plaintiff has suffered serious injuries and the act of the Defendants resulted in intentional infliction of emotional distress.

18. The Plaintiff has suffered extreme intentional infliction of emotional distress by the Defendants while she has been incarcerated in the jail.

19. The Defendants’ conduct in failing to follow the rudimentary and fundamental jail standards as established by Oklahoma statute have inflicted untold stress upon the Plaintiff

20. The conduct of the Defendants in allowing beatings and other unconscionable conduct is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is atrocious and utterly intolerable in a civilized community.

21. The acts of the Defendants in the treatment of the Plaintiff were wanton, willful and malicious and done with purposeful and a reckless disregard for the constitutional rights of the Plaintiff, thereby justifying the imposition of punitive or exemplary damages.

COUNT III - DECLARATORY JUDGEMENT

Paragraphs 1-21 are incorporated by reference.

22. There exists an actual controversy between the Plaintiff and the Defendants. This actual controversy arises out of deliberate indifference exhibited by the Defendants in violation of the Plaintiffs constitutional and statutorily protected rights.

23. This Court has authority to determine and declare rights, duties and liabilities by and between the Plaintiff and the Defendants pursuant to 12 O.S. 1651 et. seq.

24. The acts of the Defendants in the systematic exercise of deliberate indifference to the rights and privileges of the Plaintiff can be resolved in part by the Court’s declaration of abuse and wanton neglect of duties.

COUNT IV - NEGLIGENCE PER SE AND NEGLIGENCE

Paragraphs 1-24 are incorporated by reference.

25. The statutes of the United States and the State of Oklahoma impose upon the Defendant a standard of conduct which they have abrogated with deliberate indifference to the rights and privileges of the Plaintiff The deliberate indifference shown by the Defendants is the direct and proximate cause of the injuries sustained by the Plaintiff.

26. The statutes of the United States and the State of Oklahoma were in full force and effect from May 25, 2003 to the present.

27. The injuries sustained by the Plaintiff are of the type intended to be prevented by Oklahoma Statutes.

28. The Defendant’s violation of federal and state statutes constitutes negligence per Se.

29. The acts of the Defendants in beating, harassing, and refusing to provide basic mandated care to the Plaintiff was a failure of the standard of care and she was damaged therefrom.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff prays as follows:

A. Declaratory judgment that the Defendants have violated the protected rights of the Plaintiff pursuant to 12 0.5. 1651 et.seq.

B. Injunction over and against the Defendants that the Defendants should cease and desist all illegal and inappropriate conduct, and that the Defendants be ordered to comply with the minimum standards established by 740.S. § 192.

C. A special master or other person or group be appointed by the Court to investigate and implement a meaningful and consistent grievance and grievance information process, so that detainees are informed and can redress institutional deficiencies and exhaust their administrative remedies in a verifiable fashion, until the Court is assured that the state constitutional statutory rights of the plaintiff and other inmates of the Oklahoma County Detention Facility are not being violated.

D. The Plaintiff recover the actual damages sustained by her at the hands of the Defendants including personal injury, emotional distress, and medical treatment costs.

E. The Plaintiff recover over and against the Defendants for the Defendants’ intentional infliction of emotional distress.

F. The Plaintiff recover punitive or exemplary damages over and against the Defendants wanton, willful and malicious conduct accomplished with a purposeful and reckless for the rights of the Plaintiff.

G. The Plaintiff have and recover their attomey fees and costs as allowed by statute; and

H. Such other and further relief as is just and proper under the circumstances.


Defendant John Whetsel appeared and answered as follows:

1. These Defendants deny this Court has jurisdiction over this matter and demands strict proof thereof. Ifjurisdiction found, then defendants admit venue is proper.

2. Defendants deny any liability for any allegations of negligence or various tort claims and demand strict proof thereof. Defendants are without knowledge to admit or deny the resident status of Plaintiff and therefore, deny such and demands strict proof thereof.

3. Defendants assert Plaintiffs federal action was ruled in favor of these defendants and that Plaintiff’s pendent state claims do not survive the award of summary judgment in defendants’ favor in the federal action CIV-04-1039-T and that the saving statute of Title 19 O.S. § 100 has no applicability to Plaintiffs claims or action in state court. Defendants assert Plaintiffs claims do not survive to a state court action and demands strict proof

4. Defendants deny the allegations in Plaintiffs ¶ 4 and demand strict proof thereof

5. Defendants policies, procedures and practices in the Oklahoma County Detention Center are constitutional; Defendant Board of County Commissioners of Oklahoma County do not set policy for the Sheriff of Oklahoma County; there was no personal participation by Sheriff Whetsel in any of the allegations made in Plaintiffs Petition, and defendants deny any liability toward Plaintiff as alleged in ¶ 5 of her petition; therefore, such allegations are denied and strict proof is demanded.

6. Defendants deny they have failed to follow the standards applicable to the operation and running of the Oklahoma County Detention Center, deny Plaintiffs allegations in ¶ 6 and demand strict proof thereof

7. Defendants deny plaintiffs allegations in ¶ 7 and demand strict proof thereof.

8. Defendants do not deny that Plaintiff was booked in and later released from the Oklahoma County Detention Center, but deny they were the source of any injury toward the plaintiff, deny the injuries alleged occurred in the center and demand strict proof thereof

9. Defendants deny the allegations in ¶ 9 and demand strict proof thereof

10. Defendants deny the allegations in ¶10 and demand strict proof thereof

11. Defendants deny plaintiff even attempted to file a grievance and deny any violation of state jail standards as applicable to this plaintiff and therefore, deny the allegations in ¶ 11 and demand strict proof thereof

12. Defendants deny any intentional infliction of emotions distress as alleged in Count II of Plaintiff’s petition ¶ 12. Defendants do admit that plaintiff was admitted to the Oklahoma County Detention Center on the basis of plaintiffs arrest on city/state charges.

13. Defendants admit that Plaintiff was arrested as alleged in ¶ 13 but deny any and all allegations of her being beaten or that she suffered any injuries as a result of any action by these defendants and would demand strict proof thereof

14. Defendants deny the allegations in plaintiffs ¶ 14 and demand strict proof thereof.

15. Defendants deny the allegations in plaintiffs ¶ 15 and demand strict proof thereof.

16. Defendants deny the allegations in plaintiffs ¶ 16 and demand strict proof thereof.

17. Defendants deny the allegations in plaintiffs ¶17 and demand strict proof thereof.

18. Defendants deny the allegations in plaintiffs ¶18 and demand strict proof thereof

19. Defendants deny the allegations in plaintiffs ¶19 and demand strict proof thereof

20. Defendants deny the allegations in plaintiffs ¶20 and demand strict proof thereof.

21. Defendants deny the allegations in plaintiffs ¶21 and demand strict proof thereof.

22. Defendants deny declaratory judgment relief can be granted and deny the existence of an actual case or controversy between Plaintiff and the Defendants as alleged in ¶22 and therefore, deny such and demand strict proof thereof

23. Defendants deny this case is proper for declaratory relief and therefore deny the allegations in plaintiffs ¶ 23 and demand strict proof thereof.

24. Defendants deny this case is proper for declaratory relief and therefore deny the allegations in plaintiff’s ¶ 24 and demand strict proof thereof

25. Defendants deny any allegations of Negligence Per Se and Negligence and also deny violating any standard of conduct which would hold them liable in regard to this plaintiff and therefore, deny the allegations in ¶ 25 and demand strict proof thereof.

26. Admitted, but defendants deny any liability toward this plaintiff and would demand strict proof as to the applicability of what plaintiff is trying to allege in ¶ 26.

27. Defendants deny any injuries toward plaintiff and therefore deny the applicability ofl27 and demand strict proof thereof

28. Defendants deny the allegations off28 and demand strict proof thereof.

29. Defendants deny the allegations in ¶29 and demand strict proof thereof

30. Defendants deny Plaintiffs Prayer for Damages A-H, deny declaratory relief is available, deny any injunctive relief is appropriate, deny a special master should be appointed or any other person or group be appointed, deny plaintiff suffered any injury at the hand of these defendants and deny any intentional infliction of emotional distress, deny punitive damages are available, deny attorney fees and costs and other relief in plaintiffs favor are appropriate.

AFFIRMATiVE DEFENSES

These Defendants assert the following affirmative defenses:

1. Plaintiff fails to state a claim upon which relief can be granted.

2. Plaintiff cannot name the Sheriff and the Board of County Commissioners both in a petition alleging negligence.

3. Plaintiffs cause of action is res judicata and issue and claim preclusion by virtue of the summary judgment rendered in favor of these defendants in the federal case of CIV-04-1039.

4. Plaintiffs state claims do not survive the summary judgment in favor of defendants in the federal action.

5. Plaintiffs case in state court is not viable based on the applicability of any saving statute under Oklahoma State law.

6. Plaintiffs case does not survive the saving statute of Oklahoma law.

7. It is improper to name Sheriff Whetsel in his individual and official capacity in a negligence case.

8. It is improper to name any entity or official other that the political subdivision in alleged negligence actions such as this.

9. Plaintiff suffered no damages at the hand of these defendants.

10. Defendant Whetsel had no personal participation in this matter.

11. Plaintiffs cause of action is barred by the statute of limitations in Title 51 O.S. § 151 et seq.

12. Defendant Whetsel has constitutional policies, practices and procedures.

13. Defendant Board of County Commissioners does not set policy for the Sheriff.

14. Punitive damages are not allowed against political subdivisions.

15. Sheriff Whetsel’ s policies and procedures have been found constitutional in regard to plaintiffs allegations by virtue of decision of federal case C1V-04-1039-T.

16. Plaintiffs claims of unconstitutional jail policies fail as a matter of law as decided by the court in CIV-04-1039-T.

17. If applicable, defendants are entitled to qualified immunity in regard to the events complained of by Plaintiff.

18. Plaintiff is not entitled to compensatory or punitive damages, either legally or factually. Punitive damages are not recoverable against a political subdivision or an elected official in his official capacity.

19. Naming the Sheriff and the Board is redundant.

20. Defendant Whetsel’ s training is constitutional, proper and sufficient under state and U.S. law and Constitution.

21. Defendant Board is not responsible for the hiring, training, control, supervision or discipline of employees of Defendant Whetsel.

22. Plaintiff failed to file a claim pursuant to the Governmental Tort Claims Act and is therefore barred from asserting or litigating any state negligence claims.

23. Plaintiff caused or contributed to her alleged injuries by her own conduct or action.

24. If plaintiff can demonstrate force was used in her allegations against these defendants, such force was the minimal amount necessary.

25. Defendants deny any excessive force was used.

26. Defendants reserve the right to assert and plead additional Affirmative Defenses as discovery continues and identifies other available defenses.

WHEREFORE, having so Answered, these Defendants pray Plaintiff take nothing by her petition and that defendants be awarded costs, fees and other relief this Court deems appropri ate.

Outcome: Plaintiff's verdict for $39,000.00.

Plaintiff's Experts:

Defendant's Experts:

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