GJA, individually, and as Parent and Next Friend of JOHN DOE and
JANE DOE, minor children, and KA, an Individual,
Plaintiffs/Appellants,
v.
OKLAHOMA DEPARTMENT OF HUMAN SERVICES; JOHN DOES
1-30, unknown individuals employed by OKLAHOMA DEPARTMENT OF HUMAN SERVICES,
Defendants/Appellees.
KEITH RAPP, PRESIDING JUDGE:
¶1 Plaintiffs, GJA (Father), individually, and as parent and next friend of
John Doe (Son) and Jane Doe (Daughter), minor children and KA (Step Mother),
individually, appeal an Order sustaining the motion to dismiss filed by
Defendant, Oklahoma Department of Human Services (DHS).1 This appeal proceeds under the
accelerated appeal procedures of Okla. Sup. Ct. Rule 1.36, 12 O.S.2011, Ch. 15,
app. 2.
BACKGROUND
¶2 Plaintiffs alleged that Daughter and Son were abused while in their
mother's (Father's former spouse) custody. The allegations are that Daughter was
sexually abused and Son was abused by withholding needed medical treatment.
According to the petition, DHS was informed about the abuse of both children and
the agency and its employees did nothing. Moreover, Plaintiffs alleged that DHS
and its employees did not report the sexual abuse as required by law.
¶3 After complying with the preliminary claim and notice provisions of the
Governmental Tort Claims Act (GTCA), Plaintiffs sued. Plaintiffs asserted a
claim for damages based upon tort claims of negligence, negligence per se
and intentional infliction of emotional distress. They alleged a violation of
their constitutional rights. Plaintiffs also alleged a civil conspiracy.
¶4 DHS moved to dismiss for failure to state a claim. 12 O.S.2011, § 2012(B)(6). DHS
argued that it was immune from tort claims and that Bosh v. Cherokee County
Governmental Bldg. Auth., 2013
OK 9, 305 P.3d 994, did not
create an actionable claim under the facts of this case. DHS also argued that
the petition did not state a claim for civil conspiracy.2
¶5 The trial court sustained the motion to dismiss. The trial court ruled
that DHS was immune under the GTCA from tort liability. Next, the trial court
ruled that the alleged violations of constitutional rights were not actionable
under Bosh. Last, the trial court ruled that the petition did not state a
claim for civil conspiracy.
¶6 Plaintiffs' response to the motion to dismiss included a request to stay
the proceedings to allow discovery and pertinent amendments to the petition. The
journal entry does not directly rule on this request, but necessarily denied it.
Plaintiffs add, as trial court error, a failure to allow discovery before ruling
on the motion.
¶7 Plaintiffs appeal.
STANDARD OF REVIEW
¶8 A trial court's dismissal for failure to state a claim upon which relief
can be granted involves a de novo review to ascertain whether the
petition, including its exhibits, is legally sufficient. Darrow v. Integris
Health, Inc., 2008 OK 1, ¶
7, 176 P.3d 1204, Indiana
Nat'l Bank v. State Dep't of Human Services, 1994 OK 98, ¶ 2, 880 P.2d 371, 375.
¶9 A pleading must not be dismissed for failure to state a claim unless the
allegations show beyond any doubt that the litigant can prove no set of facts
which would entitle him to relief. Indiana Nat'l Bank, 1994 OK 98 at ¶ 3, 880 P.2d at 375.
The trial court's task is to inquire whether relief is possible under any set of
facts that could be established consistent with the allegations. Generally, a
motion to dismiss may be sustained for two reasons: (1) lack of any cognizable
legal theory, or, (2) insufficient facts under a cognizable legal theory.
Indiana Nat'l Bank, 1994 OK 98 at ¶ 4, 880 P.2d at
375-76.
¶10 The appellate court will exercise its "plenary, independent, and
non-deferential authority [when] reexamin[ing] a trial court's legal rulings."
Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 4, 932 P.2d 1100, 1103 n.1; Spielmann
v. Hayes, 2000 OK CIV APP 44,
¶ 8, 3 P.3d 711, 713. This
Court's standard of review is de novo and gives no deference to the legal
rulings of the trial court. State ex rel. Dep't of Human Services ex rel.
Jones v. Baggett, 1999 OK 68,
990 P.2d 235.
ANALYSIS AND REVIEW
A. Sovereign Immunity
¶11 DHS asserted sovereign immunity for all tort claims alleged by
Plaintiffs.3
The GTCA specifies the extent to which sovereign immunity has been waived. 51 O.S.2011, § 153(A) and (B).4 In Smith v.
City of Stillwater, 2014 OK
42, ¶ 14, 328 P.3d 1192,
1198, the Court held:
The GTCA is the exclusive remedy by which an injured plaintiff may
recover against a governmental entity for its negligence. The GTCA adopts
the doctrine of sovereign immunity and provides that the State, its
political subdivisions, and all of their employees acting within the scope
of their employment, whether performing governmental or proprietary
functions, shall be immune from liability for torts. The GTCA waives the
immunity of the State and its political subdivisions, but only to the extent
and in the manner provided in the act. Title 51 O.S. §153 extends
governmental accountability to all torts for which a private person or
entity would be liable, subject only to the act's specific limitations and
exceptions. (Citations omitted.)
¶12 DHS relies upon two of the statute's exceptions: 51 O.S.2011, § 155(4) and (29).5
1.Section 155(4)
¶13 DHS condensed and summarized Plaintiffs' allegations. DHS described the
petition as charging that DHS was guilty of negligence and negligence per
se "in breaching its common law and statutory duties to protect (Child
Plaintiffs) from sexual assault or abuse, physical abuse, emotional abuse and
other abuses."
¶14 Plaintiffs alleged that DHS, by its employees, knew or should have known
of the abuse of both children occurring or beginning in March and July of 2011.
Plaintiffs claimed that DHS was informed about the abuse of Son and took no
action. Plaintiffs further alleged that DHS was informed of the sexual abuse of
Daughter, stopped its investigation, and took no action, including not reporting
the sexual abuse claim to the police.6
¶15 By statute, DHS is directed to respond to reports of child abuse and
conduct an investigation. 10A O.S.2011, § 1-2-105 (amended effective November 1,
2014). This statute describes the duties and authority of DHS in conducting its
investigation and requires a written report to the District Attorney.
¶16 DHS cited Skurnack v. State ex rel. Dep't of Human Services, 2002 OK CIV APP 37, 46 P.3d 198. In Skurnack,
the Court held that DHS was immune under the previously numbered child abuse
investigation statute. The facts of that case are that DHS tried to investigate,
but the investigation was thwarted by the parents. DHS had to resort to
intervention in court by the District Attorney. Thus, the Court observed that
the record was clear that DHS was "attempting to enforce" the statute requiring
it to investigate or assess the referral of neglect. Consequently, the immunity
based upon "enforcement" of law shielded DHS from the liability claimed by
Skurnack.
¶17 Here, the allegations are different than the facts in Skurnack,
where the "enforcement" exemption for immunity applied. The Plaintiffs
alleged that DHS did nothing regarding the abuse report involving Son and
virtually did nothing regarding the abuse report involving Daughter.7 In other words,
Plaintiffs alleged that DHS failed to enforce the law.
¶18 Section 155(4) provides for immunity for "[a]doption or enforcement of
or failure to adopt or enforce a law, whether valid or invalid,
including, but not limited to, any statute, charter provision, ordinance,
resolution, rule, regulation or written policy." (Emphasis added.) Viewed in the
best light possible, Plaintiffs alleged that DHS failed to enforce the law. DHS
is thus immune from liability. See, Felkins v. Oklahoma Firefighters
Pension and Ret. Sys., 2005 OK
CIV APP 39, ¶ 13, 116 P.3d
195, 198 (retirement system trustees immune based on alleged failure to
enforce law); and, Bordwine v. Oklahoma Firefighters Pension and Ret.
Sys., 2004 OK CIV APP 75, ¶
11, 99 P.3d 703, 706-07 (failure
to credit military service as required by law).
¶19 Therefore, the trial court correctly ruled that the tort claims of
negligence, negligence per se and intentional infliction of emotional
distress must be dismissed because DHS has immunity under Section 155(4). The
damage claim for loss of consortium was also correctly dismissed, because it is
an item of damages for the dismissed torts
2.Section 155(29)
¶20 DHS merely stated that Section 155(29) affords immunity. Section
155(29) pertains to acts or omissions of an employee in the placement of
children. Here, according to the allegations, both children were living with
their mother at the time and in accordance with the Decree of Divorce. Thus, the
children were not "placed" by DHS employees. The Legislature could have, but did
not, include "removal of children" in this subdivision of the statute.
¶21 Moreover, a reasonable reading of the petition does not disclose any
claim based upon an act or omission in the placement of the children. Section
155(29) does not apply.
B. Constitutional Claim
¶22 Plaintiffs alleged that the actions and inactions of DHS employees, with
respect to the abuse claims, violated their constitutional rights to Due Process
of Law as guaranteed by the Oklahoma Constitution. Plaintiffs further alleged
that discovery might reveal additional violations of constitutional rights, but
none were specifically identified. Plaintiffs asserted that they have a cause of
action under the holding of Bosh v. Cherokee County Governmental Bldg.
Auth., 2013 OK 9, 305 P.3d 994.
¶23 The Bosh Court held: (1) that section 30, article 2 of the
Oklahoma Constitution provides a private cause of action for excessive force
against an arrested and detained person, notwithstanding the immunities under
the GTCA; (2) respondeat superior applied; and (3) the action is
recognized retrospectively. 8 The facts were that Bosh was in custody and while
being booked, the jailers severely beat and injured him and denied him medical
attention for two days. His injures were severe and required surgery.
¶24 The Bosh Court reasoned:
The OGTCA cannot be construed as immunizing the state completely from all
liability for violations of the constitutional rights of its citizens. To do
so would not only fail to conform to established precedent which refused to
construe the OGTCA as providing blanket immunity, but would also render the
Constitutional protections afforded the citizens of this State as
ineffective, and a nullity. Therefore we answer the reformulated question
and hold that the Okla. Const. art 2, § 30 provides a private cause of
action for excessive force, notwithstanding the requirements and limitations
of the OGTCA.
Bosh, 2013 OK 9 at ¶
23, 305 P.3d at 1001.
¶25 The case before this Court now presents two lines of inquiry.
¶26 First: Should the Bosh case be limited to its facts and specific
holdings or does the decision stand for the proposition that the Supreme Court
recognizes a broader scope of actionable claims based upon violations of
constitutional rights? Second: If the latter interpretation be followed, does
that mean that Plaintiffs here have stated a claim?9
¶27 The concept of precedent at least stands for the proposition that under
certain facts, a particular party should prevail on the relevant source of law.
Thus, the facts in Bosh involve an arrested person who is detained in
jail and subjected to excessive force and inhumane conditions of confinement,
all of which invoke Article 2, section 30 of the Oklahoma Constitution. Another
person, similarly treated, can invoke Bosh as authority for that person's
lawsuit. 10
¶28 Clearly, Plaintiffs' allegations do not involve the same or similar
circumstances. In a strict sense, the Bosh precedent, when thusly
limited, does not provide authority for Plaintiffs to state a claim.11
¶29 However, such limitation fails to account for the Court's reasoning. Of
course, the Supreme Court has had the occasion to deem its prior statements as
"broader than the facts warrant." Stone v. Bonaparte, 1930 OK 563, ¶ 22, 297 P. 228, 232. On the other hand,
the Court has recognized that "precedents must often yield to the force of
reason and to paramount demands of justice as well as the decencies of civilized
society, and the law ought to speak with a voice responsive to these demands."
Oklahoma County v. Queen City Lodge No. 197, I.O.O.F., 1945 OK 55, ¶ 20, 156 P.2d 340, 344-45.
¶30 A more in depth examination of Bosh is warranted in order to
ascertain what rule, standard, or principle the case was meant to stand for. In
that regard, the Supreme Court expressed its reasoning as set out above. In
addition, the Supreme Court reviewed authorities leading up to its decision and
placed its decision in historical perspective. Thus, the Opinion provides the
textual material that enables the reader of that Opinion to understand the
Court's intent. The result of such an examination discloses that the Court has
not only adjudicated a specific claim based upon a set of facts, but also the
Court made a statement of policy (upholding constitutional guarantees and
protections) as its broader holding. The Court then specifically applied that
broader policy statement holding to the facts of the case.
¶31 Therefore, in this Court's opinion, Bosh stands for the
proposition that the protections and guarantees afforded the citizens by the
Constitutions of the State of Oklahoma and of the United States represent the
highest values of the people. Violations of these rights and guarantees cannot
be shielded under the guise or cloak of immunity.
¶32 The first inquiry is answered. The Bosh case is not limited to its
facts and specific holding. It does stand for the proposition that the Supreme
Court recognizes a broader scope of actionable claims based upon violations of
constitutional rights.
¶33 The question remains, however, of whether Plaintiffs have stated such a
claim. Plaintiffs allege that the children's rights to Due Process of Law were
violated. Not every malfeasance, misfeasance, or nonfeasance rises to the level
of a violation of constitutional rights.12 This Court observes that, in cases
like Bosh and cases involving convicted, incarcerated inmates, where a
claim has been found, the facts reveal an egregious and extreme set of
circumstances showing that the individual defendant(s) intentionally inflicted
physical harm on the plaintiff.13
¶34 In cases such as here under review, the trial court has a role as
gatekeeper to determine whether a petitioner made a claim as a matter of law. In
Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372-73 (1994), the
Court explained that the district court must make certain preliminary
determinations before a claim for damages for a constitutional violation could
proceed. Additional examples of a trial court's gatekeeper role include:
Courtney v. State, 2013 OK
64, ¶ 8, 307 P.3d 337, 341
(petition to determine innocence); Worsham v. Nix, 2006 OK 77, 145 P.3d 1055 (gatekeeper of the
evidentiary process); Miller v. Miller, 1998 OK 24, ¶ 34, 956 P.2d 887, 901 (determination
whether conduct may reasonably be regarded as sufficiently extreme and
outrageous).
¶35 Application of a court's gatekeeper role further serves to focus the
Bosh claims upon those acts or inactions which rise to the level of a
constitutional claim. This means that Bosh does not create a wide-ranging
tort claim. Moreover, the gatekeeper role will resolve cases such as Jackson
v. Oklahoma City Pub. Sch. without having to limit the interpretation of
Bosh.14 Thus, the facts as recited in Jackson may
easily be judged as facts that do not give rise to a constitutional claim.
¶36 Here, this Court must consider whether the allegations sufficiently state
a claim of violation of constitutional rights. It does not appear that the trial
court did so opting instead to limit Bosh to its facts. Nevertheless, if
the trial court reached the correct judgment, although for incorrect reasons,
the judgment will not be reversed. Thompson v. Inman, 1971 OK 32, ¶ 30, 482 P.2d 927, 937.
¶37 According to the petition, the children were not in the custody of DHS so
as to implicate their clearly established constitutional right to be reasonably
safe from harm when placed in the state's custody.15 The employees of DHS were not the
persons inflicting the alleged physical and emotional harm on the children. The
substance of the petition is that: (1) DHS and its employees had a duty imposed
by law to investigate child abuse reports; (2) DHS and its employees breached
that duty by either failing to investigate or negligently investigating the
child abuse reports; and, (3) as a direct result of the breaches of duty the
children sustained injury for which they are entitled to damages.
¶38 After examination using the "gate keeper" role, this Court concludes that
Plaintiffs' petition does not contain allegations of facts giving rise to
violations of constitutional rights to Due Process of Law. At most, the
allegations are claims of gross negligence in carrying out the investigations;
so Plaintiffs have not brought their claims into the Bosh cause of action
for violation of constitutional rights. Therefore, the trial court did not err
in dismissing the petition.
C. Additional Discovery
¶39 In their response to the motion to dismiss, Plaintiffs requested that the
ruling be stayed for additional discovery and corresponding amendment to the
petition. This is the equivalent of a request for additional time to respond.
Plaintiffs' request did not identify any areas for discovery or provide
authority for the request. The Record shows that neither party had initiated any
discovery.16
¶40 The Oklahoma Pleading Code gives the court discretion to permit
enlargement of time to respond for good cause. 12 O.S.2011, § 2006; Davis v.
Martin Marietta Materials, Inc., 2010 OK 78, ¶ 1(3), 246 P.3d 454, 455. However, the
statute directs that the motion for extension of time be filed before the
expiration of the original deadline. 12 O.S.2011, § 2006(B)(1)17; Powers
v. District Court of Tulsa County, 2009 OK 91, ¶ 4, 227 P.3d 1060, 1066; Humphries
v. Lewis, 2003 OK 12, ¶ 6,
67 P.3d 333, 335 (emphasizing
"before"); see Langford v. Anderson, 1989 OK CIV APP 47, ¶ 5, 778 P.2d 937, 938 (noting that a
party did not have an absolute right to discovery before a ruling on a motion to
dismiss).
¶41 Here, Plaintiffs did not file prior to the deadline or offer a good cause
basis to grant an extension of time. Hence, the Record does not reveal any basis
to find that the trial court abused its discretion.
¶42 The petition-in-error states only that the trial court committed error as
a matter of law without permitting discovery. As shown here, there is no
absolute right to an extension of time. Therefore, in addition, the
petition-in-error does not set out a ground for reversal.
¶43 The trial court did not err by ruling on the motion to dismiss without
granting additional time to Plaintiffs for discovery.
CONCLUSION
¶44 Section 155(4) of the GTCA provides for immunity for "[A]doption or
enforcement of or failure to adopt or enforce a law, whether valid or
invalid, including, but not limited to, any statute, charter provision,
ordinance, resolution, rule, regulation or written policy." Viewed in the best
light possible, Plaintiffs alleged that DHS failed to enforce the law. DHS is
thus immune from liability. The trial court correctly ruled that the tort claims
of negligence, negligence per se, and intentional infliction of emotional
distress must be dismissed because DHS has immunity under Section 155(4). The
damage claim for loss of consortium was also correctly dismissed because it is
an item of damages for the torts. Section 155(29) of the GTCA does not apply to
this case.
¶45 Plaintiffs' claim that they have a cause of action under the holding of
Bosh v. Cherokee County Governmental Bldg. Auth., 2013 OK 9, 305 P.3d 994, is denied. This Court
interprets Bosh as providing a cause of action in order to protect
against violations of constitutional rights and guarantees in general rather
than being limited to the specific constitutional right involved in the case.
Nevertheless, not every misfeasance, malfeasance and nonfeasance amounts to a
violation of constitutional rights. In its role as gatekeeper, the trial court
determines whether the alleged conduct might reasonably be determined to be of
the character of a violation of constitutional rights. Here, the alleged action
and inaction on the part of DHS might constitute gross negligence, but they do
not rise to the level of a violation of constitutional rights. Therefore, the
trial court reached the correct result by dismissing the Bosh claim.
¶46 The trial court did not err by ruling on the motion to dismiss without
granting additional time for discovery.
¶47 The judgment of the trial court dismissing the Plaintiffs' petition is
affirmed.
BARNES, J., and THORNBRUGH, J., concur.