Higginbottom v. Mid-Del Sch. Dist.

CURTIS HIGGINBOTTOM, Plaintiff, v. MID-DEL SCHOOL DISTRICT, a/k/a Independent School District No. I-52;DR. PAM DEERING, individually and in her official capacity; ODIS CLAYTON PITTS,individually and his official capacity; RICK MENDENHALL, Director ofHuman Resources, individually and in his official capacity; LARRY STEPHENSON,Director of Safety, individually and in his official capacity; RON STEARNS,Director of Transportation, individually and in his official capacity;and JOHN DOE and/or JANE DOE, Nos. 1-6, Defendants.

Case No. CIV-15-1091-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

March 9, 2016

ORDER

Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants Independent School District No. 52 ("District"), Dr. Pam Deering, Rick Mendenhall, Larry Stephenson, and Ron Stearns, move to dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted [Doc. No. 7]. Plaintiff has filed his response in opposition [Doc. No. 10]. The matter is fully briefed and at issue.

BACKGROUND¹

In 2011, Defendant Odis Clayton Pitts was hired as a school bus driver for the District. In his application, Pitts disclosed his licensed had been suspended for driving under the influence. Pitts was terminated in May 2012 for disciplinary reasons relating to safety violations and substance abuse; however, he was rehired for the 2013-14 school year and continued to serve as a bus driver during the 2014-15 school year. On the morning of April 20, 2015, Pitts was driving his assigned bus routes. After completing the first two routes, Pitts took a break. After the break, however, Pitts deviated from his route and collided with numerous curbs, vehicles, and a municipal dump truck. Plaintiff, who was traveling in the same direction, was rear ended by Pitts. The collision propelled Plaintiff's vehicle into oncoming traffic, where hecollided head-on with a pickup truck. Plaintiff suffered serious injuries and his vehicle was declared a total loss.

Plaintiff sued Pitts, the District, certain municipal officials, and several John/Jane Doe defendants, alleging causes of action for (1) negligence, (2) violation of due process, (3) negligent hiring and retention, (4) negligent supervision and control, and (5) reckless indifference.² Defendants move to dismiss Plaintiff's tort claims on the grounds they are barred by the Oklahoma Governmental Tort Claims Act ("OGTCA"), 51 OKLA. STAT. § 151 et seq, and Plaintiff has failed to state a plausible violation of his due process rights. As a consequence, Defendants also contend they cannot be liable for punitive damages as requested in the Amended Complaint.

STANDARD OF DECISION

In order to survive a Rule 12(b)(6) motion to dismiss, a 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering such motions, a court must distinguish between well-pled facts and conclusory allegations. Archuleta v. Wagner,523 F.3d 1278, 1283 (10th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. That the Court accepts them as true, however, does not mean the allegations in a complaint are in fact true; a plaintiff is not required to prove his case at the pleading stage. Glover v. Mabrey, 384 F. App'x 763, 772 (10th Cir. 2010) (unpublished). Rather, the complaint must allege facts which "give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).

In reviewing a motion to dismiss, the Court neither assesses the legal feasibility of the complaint, nor does it weigh the evidence which might be offered at trial. Skinner v. Switzer, 562 U.S. 521, 529-30 (2011). Granting a motion to dismiss is "a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Duran v. Carris, 238 F.3d 1268, 1270 (10th Cir. 2001) (internal quotation marks omitted)). "Thus, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and that a recovery is very remote and unlikely."Sanchez v. Hartley, 810 F.3d 750, 756 (10th Cir. 2016) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted).

Where dismissal is granted for failure to state a claim, a court should grant leave to amend freely "if it appears at all possible that the plaintiff can correct the defect." Triplett v. Leflore County, Okla., 712 F.2d 444, 446 (10th Cir. 1983). Leave to amend is not automatic and may be properly denied where an amendment would be futile. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2004). A court properly may deny leave to amend as futile when the proposed amended complaint would be subject to dismissal for any reason, including that the amendment would not survive a motion for summary judgment. E.spire Commc'ns., Inc. v. N.M. Pub. Regulation Comm'n, 392 F.3d 1204, 1211 (10th Cir. 2004).

DISCUSSION

I. WHETHER THE OGTCA BARS PLAINTIFF'S COMMON LAW TORT CLAIMS

The OGTCA provides the exclusive remedy for an injured plaintiff to recover against a governmental entity in tort. Gowens v. Barstow, 2015 OK 85, ¶ 12, 364 P.3d 644, 650. In passing the Act, Oklahoma formally adopted the doctrine of sovereign immunity. Crouch v. Daley, 581 F. App'x 701, 705 (10th Cir. 2014) (unpublished). Under its provisions, the state statutorily waives sovereign immunity from suit for itself and its subdivisions (including "arms of the state") in limited circumstances. 51OKLA. STAT. § 153. Defendants seek dismissal of Plaintiff's negligent hiring, supervision, and retention claims based on two provisions under the OGTCA. First, Defendants invoke an exemption from liability for performing or failing to perform "any act or service which is in the discretion of the [District] or its employees." 51 OKLA. STAT. § 155(5). Defendants also claim immunity under an exemption for the "enforcement of or failure to . . . enforce a law," which is statutorily defined to include a "written policy." Id. § 155(4).

Plaintiff's third, fourth, and fifth causes of action allege Defendants were negligent/recklessly indifferent in hiring, supervising, and retaining Pitts. Plaintiff alleges Defendants knew or should have known of Pitts' questionable history, yet hired him anyway, thereby causing a substantial risk of harm to Plaintiff and others. Compl., ¶¶ 57-59, 62-64. Defendants argue that employment decisions are protected under the discretionary function exemption in § 155(5). They cite decisions from this Court, and others, which have held personnel decisions (i.e., hiring and supervision) involve policymaking and planning concerns, and thus, warrant protection as discretionary matters.³ In Houston v. Independent Sch. Dist. No. 89 of Okla. County,949 F. Supp. 2d 1104 (W.D. Okla. 2013), the Court noted Oklahoma had adopted the "planning-operational approach" to the discretionary function exemption. Id. at 1109 (citing Nguyen v. State, 1990 OK 21, ¶ 5, 788 P.2d 962, 963). "Under this approach initial policy level or planning decisions are considered discretionary and hence immune, whereas operational level decisions made in the performance of policy are considered ministerial and not exempt from liability." Id. In other words, if the activity is "discretionary" it will be considered "governmental" and therefore protected by sovereign immunity. Conversely, an activity that is "ministerial" or "operational" will not be protected.

Distinguishing between discretionary and ministerial activities can be difficult. The Supreme Court has stated that a discretionary function "is one that involves choice or judgment." United States v. Gaubert, 499 U.S. 315, 325 (1991). Nevertheless, to this end, courts in this district (including this Court) and its sister courts have applied the discretionary function exemption to similar allegations of negligent hiring, supervision, and retention. See Houston, 949 F. Supp. 2d at 1109; Benedix v. Indep. Sch. Dist. No. I-007 of Okla. County, Okla., No. CIV-08-1060-D, 2009 WL 975145, at *4 (W.D. Okla. Apr. 9, 2009); Allen v. Justice Alma WilsonSeeworth Academy, Inc., No. CIV-12-93-HE, 2012 WL 1298588, at *2 (W.D. Okla. Apr. 16, 2012) (school board's training, supervision, and retention of its employees was "discretionary" under OGTCA and citing cases in support); Young v. Okla. City Pub. Sch., Indep. Sch. Dist. 89, No. CIV-13-633-M, 2013 WL 6567144, at *3 (W.D. Okla. Dec. 13, 2013) ("the school district's decision regarding hiring, retention, and supervision of its employees is deemed to be a discretionary act and, thus, falls under the GTCA's discretionary exemption."); Seals v. Jones, No. 12-CV-569-JED-TLW, 2013 WL 5408004, at *4 (N.D. Okla. Sept. 25, 2013) ("Any alleged negligent hiring and retention of employees by Cleveland County would fall within the discretionary functions provision of the GTCA, for which Cleveland County is immune from suit as a matter of law."); White v. City of Tulsa, No. 13-CV-128-TCK-PJC, 2013 WL 4784243, at *5 (N.D. Okla. Sept. 5, 2013) (city was immune for officer's alleged negligent training and supervision because such acts were discretionary); Fumi v. Board of County Comm'rs of Rogers County, No. 10-CV-769-TCK-PJC, 2011 WL 4608296, at **6-7 (N.D. Okla. Oct.3, 2011) (agreeing that entity was immune from officers' alleged negligent hiring, training, supervision and retention under § 155(5)); Burns v. Holcombe, No....