# DiCesare v. Makinson

> District Court, E.D. Oklahoma · May 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10385771

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** May 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10385771

## How later opinions describe it (automated extraction)

- recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

JOSEPH ANGELO DICESARE,

Plaintiff,
v. Case No. 21-CV-231-RAW

GARY MAKINSON, Okmulgee Deputy
Sheriff,
JOSHUA WHITNEY, Okmulgee
Deputy Sheriff,
FNU LAWSON, Okmulgee Deputy
Sheriff,
CINDY STEPHENS,
KRISTI D. BOYDSTON, and
DEPARTMENT OF HUMAN
SERVICES

Defendants.

OPINION AND ORDER
Before the court are two motions to dismiss various claims contained in Plaintiff Joseph
Angelo DiCesare’s (“Plaintiff”) Second Amended Complaint. Dkt. No. 64. First, Defendant
Oklahoma Department of Human Services (“OKDHS”) moves to dismiss Plaintiff’s claims against
it for violation of Plaintiff’s rights under the 4th, 5th, 6th, 8th, and 14th Amendments of the United
States Constitution, as well as unspecified violations of Oklahoma law. Dkt. No. 65. Second,
Defendant Gary Makinson (“Makinson”), an Okmulgee Deputy Sheriff, moves to dismiss
Plaintiff’s claims against him for violations of Plaintiff’s rights under the 4th, 8th, and 14th
Amendments of the United States Constitution, as well as “a myriad of Okla. Const. Arts. & State
Statutes . . . .” Dkt. No. 68; see also Dkt. No. 64 at 15.
Plaintiff did not respond to Defendant Makinson’s dismissal motion and his deadline to do
so has passed without request for an extension or to file out of time. Plaintiff did file a response in
opposition to OKDHS’s dismissal motion. Dkt. No. 69. For the reasons stated, Defendant
OKDHS’s motion to dismiss is GRANTED. Defendant Makinson’s motion to dismiss is
GRANTED in part and DENIED in part as explained hereinbelow.
BACKGROUND
Plaintiff’s Second Amended Complaint asserts a broad array of loosely connected
allegations against loosely related individuals and entities. Dkt. No. 64 at 2-14. With respect to the

dismissal motions at issue, Plaintiff alleges that OKDHS violated his constitutional rights by
“stealing Plaintiff’s children” following a finding of child abuse/neglect. Dkt. No. 64 at 18; see
also Dkt. No. 32, Ex. G. Plaintiff asserts this same alleged conduct violated his rights under section
II-2 of the Oklahoma Constitution1 and OKLA. STAT. tit. 76, § 1.2
As to Defendant Makinson, Plaintiff alleges that Makinson, among others, was called to
Plaintiff’s residence following a dispute between Plaintiff and his ex-girlfriend. Dkt. No. 64 at 5-
9. Plaintiff was ultimately arrested on a gun charge and transported to jail by Defendant Makinson.
Id. at 9. Plaintiff alleges that “while enroute to lock-up” Defendant Makinson “slammed on the
brakes so hard it rammed Plaintiff’s head into the cage in the patrol car,” resulting in a skull
fracture. Id. Plaintiff asserts that Defendant Makinson’s actions, which he allegedly repeated two

(2) more times, were “purposeful.” Id. at 9-10. Plaintiff claims this alleged conduct “violated the
rights, privileges and immunities of [the] 4th, 8th, and 14th Amendments . . . and a myriad of Okla.
Const. Arts. & State Statutes . . . .” Id. at 15. Plaintiff alleges that Defendant Makinson
subsequently stole money from his wallet sometime during the three (3) days he was in jail. Id.

1 “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment
of the gains of their own industry.”

2 “Every person is bound, without contract, to abstain from injuring the person or property of
another, or infringing upon any of his rights.”
Plaintiff asserts that the alleged theft of money from his wallet violated “both federal and state
law, e.g., Okla. Const. Art. II § 2, 7, 30, [and] all of the statutes involving mental health, and
especially” OKLA. STAT. tit 76, 1, 3. Id. at 16.
Both Defendants argue that Plaintiff’s claims against them should be dismissed under FED.

R. CIV. P. 12(b)6) for failure to state a claim upon which relief can be granted. Defendant OKDHS
also argues that dismissal is proper for lack of jurisdiction under FED. R. CIV. P. 12(b)(1).
STANDARD OF REVIEW
The purpose of a motion to dismiss under FED. R. CIV. P. 12(b)(6) is to test the sufficiency
of the plaintiff's complaint. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 2008). “To survive a 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.’” Iqbal, 556 U.S. at
678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of
a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires

a two-prong analysis. First, a court must identify “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 680. Second, the court must consider the factual allegations
“to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state
a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged
their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required to state a plausible claim will vary based on
context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while
the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a
complaint, the elements of each alleged cause of action may help to determine whether the plaintiff

has set forth a plausible claim. Khalik, 671 F.3d at 1192. However, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a
formulaic recitation of the elements of a cause of action,” so that “courts ‘are not bound to accept
as true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,” the complaint has
made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks

and citation omitted).
Additionally, FED. R. CIV. P. 12(b)(1) empowers a court to dismiss a complaint for “lack
of subject matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a
plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See
Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of
limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A
court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it
becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906,
909 (10th Cir. 1974). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations
of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject
matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly,
Plaintiff in this case bears the burden of establishing that this court has jurisdiction to hear his
claims.3

ANALYSIS
First, Defendant OKDHS argues that dismissal is appropriate under FED. R. CIV. P.
12(b)(1) because this court lacks jurisdiction to consider Plaintiff’s claims. Dkt. No. 65 at 2.
Specifically, OKDHS asserts that Plaintiff’s claims against it are barred by the Eleventh
Amendment to the United States Constitution and also because OKDHS is not a “person” subject
to suit under 42 U.S.C. § 1983. Id. at 4, 6.
The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Although the Eleventh Amendment expressly refers to suits by “Citizens of another State,” the
Supreme Court has made clear that “the Amendment bars suits against a State by citizens of that
same State as well.” Papasan v. Allain, 478 U.S. 265, 276 (1986). The Supreme Court has further
explained that “in the absence of consent a suit in which the State or one of its agencies or
departments is named as a defendant is proscribed by the Eleventh Amendment.” Pennhurst State
School v. Hosp. & Halderman, 465 U.S. 89, 100 (1984).

3 Plaintiff is proceeding pro se. The court construes liberally the pleadings of pro se litigants. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Although pro se pleadings are held to a less
stringent standard than pleadings drafted by lawyers, a pro se litigant must “follow the same rules
of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Therefore, the relevant inquiries are (i) whether Defendant OKDHS is an agency or
department of the State of Oklahoma and (ii) whether the State of Oklahoma has consented to suit
by a citizen such as Plaintiff. Regarding the first inquiry, no legal analysis is necessary to conclude
that the Oklahoma Department of Human Services is a department of the State of Oklahoma. See

Legates v. Oklahoma ex rel. Rogers Dept. of Human Services, 2010 WL 4941437, *4 (N.D. Okla.
Nov. 30, 2010) (“DHS is an arm of the State of Oklahoma to which immunity under the Eleventh
Amendment applies.”); McKinney v. State of Oklahoma Dept. of Human Services, 925 F.2d 363,
365 (10th Cir. Feb. 8, 1991) (“We agree with the district court that the eleventh amendment bars
plaintiff from seeking money damages against the Oklahoma Department of Human Services.”).
With respect to the second inquiry, the State of Oklahoma has not consented to suit by its
citizens and has expressly “adopt[ed] the doctrine of sovereign immunity.” OKLA. STAT. tit. 51, §
152.1(A). Oklahoma law provides “it is not the intent of the state to waive any rights under the
Eleventh Amendment to the United States Constitution.” Id. at § 152.1(B). As such, Plaintiff’s
claims against Defendant OKDHS must fail for lack of subject matter jurisdiction. It is therefore

unnecessary for the court to address OKDHS’s separate arguments for dismissal
Defendant Makinson argues that Plaintiff’s claims against him should be dismissed for
failure to state a claim under FED. R. CIV. P. 12(b)(6). Defendant first asserts that Plaintiff’s
Complaint “fails to meet the requirements set forth in FED. R. CIV. P. 8,” which calls for a “short
and plain statement . . . showing that the pleader is entitled to relief.” Dkt. No. 68 at 6-7. Makinson
continues that Plaintiff’s Complaint is subject to dismissal because “it is twenty-five pages long,
with eleven exhibits, and consists mainly of long, rambling, paragraphs, filled with legal
conclusions, which ultimately fail to meet the standard set forth in FED. R. CIV. P. 8.” Id. at 7.
The court will not dismiss Plaintiff’s Complaint for being too long. However, the court
must determine whether the substance of the allegations contained in Plaintiff’s 25-page
Complaint state a plausible claim for relief under state law and/or under 42 U.S.C. § 1983. Plaintiff
alleges that Defendant Makinson “purposeful[ly]” slammed on the brakes of his patrol car in route

to Okmulgee County Jail, causing Plaintiff’s head to strike the cage in the vehicle, which “resulted
in Plaintiff’s forehead being fractured above Plaintiff’s left eye . . . .” Dkt. No. 64 at ¶¶ 9-10.
Plaintiff also alleges that Defendant Makinson stole $240.00 from his wallet while Plaintiff was in
jail. Id. at ¶ 11.
To the extent Plaintiff claims this conduct violated “myriad” Oklahoma articles and state
statutes, including section 1 of Article XV 1 of the Oklahoma Constitution , the claim(s) must fail.
Section 1 of Article VX of the Oklahoma Constitution pertains to the oath of office required of
public officers. An oath of office does not equate a contract with an individual such as Plaintiff.
See Ginter v. Johnson, 2014 WL 1271755 (D. Utah Mar. 27, 2014). In any event, “[p]olicemen,
firemen, and mail carriers are evidently not officers contemplated by said section.” Oklahoma City

v. Oklahoma Ry. Co., 1907 OK 158, 93 P. 48, 51. Plaintiff’s state tort claims are also barred by
the applicable one-year statute of limitations for persons in the custody of the State of Oklahoma.
OKLA. STAT. tit. 12, § 95(A)(11). Accordingly, Plaintiff’s state law claims against Defendant
Makinson are properly dismissed.
Although not specifically articulated, the remainder of Plaintiff’s claims against Defendant
Makinson are asserted under 41 U.S.C. § 1983 for violation of his civil rights. These claims arise
from the same facts as those described above; specifically, that Defendant Makinson purposefully
slammed on the brakes of his patrol car, causing injury to Plaintiff. Dkt. No. 64 at ¶¶ 9-11.4 Section
1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983

Therefore, Plaintiff’s remaining causes of action against Defendant Makinson (for
violation of his rights under the 4th, 8th, and 14th Amendments of the United States Constitution)
require that Defendant Makinson was acting under color of state law and that he subjected or
caused Plaintiff to be subjected to a deprivation of his constitutional rights. Id.; see also Jenkins v.
Wood, 81 F.3d 988, 994 (10th Cir. 1996). The court finds it self-evident that Defendant Makinson
was acting under color of state law when, Plaintiff alleges, Makinson placed Plaintiff under arrest,
put Plaintiff into his patrol car, and then repeatedly and purposefully slammed on the brakes while
transporting Plaintiff to jail. Dkt. No. 64 at ¶¶ 9-10.
Defendant Makinson’s argument for dismissal is that Plaintiff’s Complaint does not
adequately allege that Makinson violated Plaintiff’s constitutional rights. Dkt. No. 64 at 8-9.
Makinson relies primarily on the Tenth Circuit’s decision in McCowan v. Morales, 945 F.3d 1276
(10th Cir. 2019). However, upon review of McCowan, the court reaches the opposite conclusion:

4 Although Plaintiff refers to a violation of his “rights, Federal & State,” in connection with the
alleged theft of money, the court is not clear whether Plaintiff is asserting a § 1983 claim based on
those allegations. Dkt. No. 64 at pp. 1-16. By contrast, Plaintiff explicitly asserts that Defendant
Makinson’s slamming on the brakes in the police car violated his 4th, 8th, and 14th Amendment
rights. Id. at p. 15. In any event, a § 1983 claim arising out of the alleged theft from Plaintiff’s
wallet cannot survive because a “meaningful post-deprivation remedy for the loss is available” in
the form of a state tort law action. See Hudson v. Palmer, 468 U.S. 517, 533.
that Plaintiff has adequately alleged a constitutional violation. The Tenth Circuit in McCown
determined that the plaintiff’s § 1983 excessive force claim survived a summary judgment motion
where the arresting officer “placed [plaintiff], handcuffed but unrestrained by a seatbelt, in the
‘caged’ back seat of the patrol car, and then drove recklessly, knowingly tossing [plaintiff] about

the back seat,” injuring the plaintiff’s shoulder. See McCowan, 945 F.3d at 1282, ff.
Nor is the court convinced by Defendant’s argument that Plaintiff’s claim should be
disposed of at the dismissal stage because Plaintiff does not allege whether he was restrained,
whether the braking was unnecessary given the traffic conditions, or whether Defendant was aware
of Plaintiff’s injuries at the time. Dkt. No. 68 at 9. Plaintiff does allege that Defendant Makinson
“slammed on the brakes so hard it rammed Plaintiff’s head into the cage in the patrol car,” which
Plaintiff refers to as a “stunt” that occurred on at least two (2) more occasions. Id.
Defendant points out that negligence—even gross negligence—has been deemed
insufficient to support a claim under § 1983. Dkt. No. 68 at 7. Defendant notes that the Tenth
Circuit has disallowed a § 1983 claim “where officers simply failed to seatbelt a handcuffed

prisoner who was then injured due to negligence or an unavoidable accident.” Id. at 8 (See
McCowan, 945 F.3d at 1284 (citing Brown v. Larsen, 653 F. App’x 577, 577-80 (10th Cir. 2016)
(unpublished); Dexter v. Ford Motor Co., 92 F. App’x 637, 638, 640-44 (10th Cir. 2004)
(unpublished)).
The defendant in McCowan advanced these same cases for the same proposition. See
McCowan, 945 F.3d at 1284. There, the Tenth Circuit stated that the defendant “inaccurately
compare[d]” the above-cited opinions, which involved “dissimilar situation[s].” Id. The court finds
that to be the case here as well. Critically, Plaintiff’s allegations in the Complaint do not add up to
negligence (even gross negligence) or unavoidable accident. Rather, Plaintiff alleges that
Defendant’s repeated “stunt” was “purposeful.” Dkt. No. 64 at ¶¶ 9-10 (emphasis added). The
court finds that Plaintiff has adequately alleged that Defendant was acting under color of state law
and caused or contributed to a deprivation of Plaintiff’s constitutional rights.
Lastly, the court must determine whether Defendant Makinson is entitled to qualified

immunity, which, if he is, warrants dismissal of Plaintiff’s claims against Makinson in their
entirety. Defendant Makinson is “entitled to qualified immunity unless it is demonstrated that [his]
conduct violated clearly established constitutional rights of which a reasonable person in [his]
position would have known.” Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251 (10th Cir. 1991).
“The relative, dispositive inquiry in determining whether the right is clearly established is whether
it would be clear to a reasonable [official such as Defendant] that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “To be clearly established,
ordinarily there must be prior Supreme Court or Tenth Circuit precedent . . . that would have put
an objective officer in [Makinson’s] position on notice that he was violating [Plaintiff’s] Fourth
Amendment rights.” Estate of Ceballos v. Husk, 919 F.3d 1204, 1213 (10th Cir. 2019) (citing

Carabajal v. City of Cheyenne, 847 F.3d 1203, 1210 (10th Cir. 2017)).
McCowan is again instructive. In that case—the facts and allegations of which are
described above—the Tenth Circuit upheld “the district court’s decision to deny [the police officer]
qualified immunity from [the plaintiff’s] excessive force claim based on the ‘rough ride’ he took
in the back seat of [the police officer’s] patrol car.” McCowan, 945 F.3d at 1289. The Supreme
Court has explained that although there does not have a be “a case directly on point,” the existing
precedent must place the unconstitutionality of the alleged conduct “beyond debate.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011). Here, the court finds that McCowan is precedential, the
unconstitutionality of the alleged conduct is beyond debate, and thus the right allegedly violated
was and is clearly established.
The court notes that each case cited by Defendant Makinson for his qualified immunity
argument is considering the argument on a motion for summary judgment. Although the precise

allegations in those cases are unknown to this court, the plaintiffs’ claims obviously survived
dismissal. Here, too, the court declines to dispose of Plaintiff’s claim on a motion to dismiss. Of
course, to succeed on his § 1983 excessive force claim, Plaintiff will have to prove that the events
in question unfolded as he contends they did. But the court holds that at this stage in litigation
Plaintiff has sufficiently stated a plausible claim for relief under § 1983.
CONCLUSION
For the reasons set forth above, Defendant OKDHS’s motion to dismiss [Dkt. No. 65] is
GRANTED. Defendant Makinson’s motion to dismiss [Dkt. No. 68] is GRANTED in part and
DENIED in part as explained hereinabove.

IT IS SO ORDERED this 30th day of May, 2023.

______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10385771. Public record. Not legal advice.