Taylor v. James Thomas

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

SHELLY R. TAYLOR, f/k/a Shelly R.

Madison,

Plaintiff,

v. Case No. 18-CV-269-GKF-FHM

CITY OF CLAREMORE, a political

subdivision and municipal corporation;

JAMES THOMAS, individually; and

FELICIA HENSON, f/k/a/ FELICIA

BURNETT, individually,

Defendants.

OPINION AND ORDER

Before the court are three motions: the Motion to Dismiss [Doc. 39] filed by defendant

James Thomas; the Motion to Dismiss [Doc. 40] filed by defendant City of Claremore; and the

Motion to Dismiss [Doc. 43] filed by defendant Felicia Henson.

I. Background

A. Procedural History

On April 27, 2018, plaintiff Shelley R. Taylor filed a state district court petition in Rogers

County, Oklahoma, asserting twelve causes of action against three defendants—the City of

Claremore, James Thomas, and Tulsa Federal Credit Union (“TFCU”). [Doc. 2-1]. On May 7,

2018, plaintiff filed an amended petition. [Doc. 2-5]. Defendants City of Claremore and James

Thomas then removed the action to this court, and plaintiff voluntarily dismissed her claims against

TFCU. [Doc. 30].

On plaintiff’s motion, the court granted her leave to file a second amended complaint

adding a new claim against Felicia Henson for Fourth Amendment malicious prosecution pursuant

to 42 U.S.C. § 1983. [Doc. 34]. Plaintiff then filed the Second Amended Complaint, and the court

struck new claims asserted therein against Henson for false imprisonment, invasion of privacy,

abuse of process, civil conspiracy, and malicious prosecution under state law because those claims

fell outside the scope of the leave previously sought by plaintiff and granted by the court.

[Doc. 36]. Defendants now move to dismiss all remaining claims asserted in the Second Amended

Complaint.

B. Allegations in the Second Amended Complaint

The Second Amended Complaint contains the following allegations. Defendant Thomas

was Town Administrator for Kingston, Massachusetts. [Doc. 35 ¶ 12]. Following a complaint of

gender discrimination, he was placed on administrative leave in June 2012 and resigned in July

2012. [Id.]. In November 2012, the City of Claremore hired Thomas as its city manager. [Id.].

Claremore is a governmental entity under the Oklahoma Governmental Tort Claims Act

(“GTCA”), Okla. Stat. tit. 51, § 151 et seq. [Id. ¶ 2]. In 2014, Claremore began using smart meters

to read residents’ electricity usage. [Id. ¶ 6]. Plaintiff, who is a Claremore resident, became a

vocal opponent of increased utility rates and advocated to Claremore on behalf of residents. [Id.

¶¶ 1, 8]. Plaintiff organized a community meeting, maintained a Facebook blog, discussed the

matter with media outlets, and caused a state legislator to contact Thomas about the issues. [Id.

¶¶ 8, 29].

On August 26, 2015, plaintiff wrote a check to Claremore to pay a utility bill. [Id. ¶ 14].

Felicia Henson, the utility office manager for Claremore, allegedly agreed that Claremore would

hold the check for four days before depositing it. [Id.]. Plaintiff and Henson reached this

agreement to avert plaintiff’s utilities being disconnected due to her difficulty in paying the bill.

[Id.]. The next day, August 27, 2015, Claremore deposited the check, which was declined. [Id.

¶ 21]. Claremore immediately disconnected plaintiff’s utilities. [Id.]. The check was recorded as

returned on September 3, 2015, and plaintiff remitted cash to pay Claremore the amount due within

twenty-four hours. [Id. ¶ 14].

After the check was returned, Claremore referred the matter to the Claremore Police

Department. [Id. ¶ 22]. Specifically, Henson sent a fax or e-mail to the Rogers County District

Attorney’s Office containing documents pertaining to plaintiff, her account, and the alleged bogus

check. [Id.]. Henson also e-mailed the documents in a shared file to defendant Thomas. [Id.].

Henson did not tell the Claremore police or the Rogers County District Attorney about the

agreement to hold the check for four days. [Id.].

In October 2015, the Claremore Police Department, at the behest of Thomas, went to

plaintiff’s bank and requested information regarding plaintiff’s account. [Id. ¶ 25]. The bank

falsely asserted that plaintiff’s account was closed. [Id.]. On October 28, 2015, a warrant was

issued for plaintiff’s arrest, and she surrendered for booking. [Id. ¶ 23]. Plaintiff was charged with

false pretenses/bogus check/con game, a felony in violation of Okla. Stat. tit. 21, § 1541.2. [Id.

¶ 24]. The affidavit for probable cause did not mention the agreement to hold the check. [Id. ¶ 37].

On August 19, 2016, the criminal case came on for preliminary hearing, and the Rogers County

District Court sustained plaintiff’s demurrer, finding a lack of probable cause. [Id. ¶ 31].

Additionally, defendant Thomas disparaged plaintiff on various occasions. [Id. ¶ 29].

Specifically, in September 2015, Thomas returned a call to a Claremore resident who had concerns

about utility rates. [Id.]. Thomas questioned whether the resident knew plaintiff and told the

resident that plaintiff’s utilities had been disconnected because she was fifteen days past due, and

that plaintiff wrote a check on a closed account. [Id.]. In October 2015, Thomas discussed

plaintiff’s personal information with another resident and questioned plaintiff’s integrity. [Id.]. In

November 2015, Thomas directed his management members when complimented by a customer

to “[b]e careful she is a proud supporter of Shelly Taylor . . . this could be a trap. She is militant

and not a smart meter supporter.” [Id.]. In August 2016, Thomas disparaged plaintiff in an e-mail

to Claremore’s mayor when he referred to plaintiff as committing a felony, notwithstanding his

knowledge that the criminal case had been dismissed. [Id.]. In April 2018, Thomas was questioned

by the media and falsely stated that plaintiff had “committed perjury.” [Id. ¶ 16].

II. Legal Standard

In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether

the plaintiff has stated a claim upon which relief can be granted. A complaint must contain “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). The plausibility requirement “does not impose a probability requirement at the

pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence” of the conduct necessary to make out the claim. Id. at 556. “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.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). The court “must determine whether the complaint sufficiently alleges facts supporting

all the elements necessary to establish an entitlement to relief under the legal theory proposed.”

Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest Guardians v. Forsgren, 478

F.3d 1149, 1160 (10th Cir. 2007)).

III. Discussion

The Second Amended Complaint asserts thirteen claims: (1) malicious prosecution under

42 U.S.C. § 1983 as to Thomas, Henson, and Claremore; (2) unlawful retaliation under 42 U.S.C.

§ 1983 as to Thomas and Claremore; (3) municipal liability as to Claremore; (4) intentional

infliction of emotional distress as to Thomas; (5) false imprisonment as to Thomas; (6) false arrest

as to Claremore; (7) invasion of privacy as to Thomas; (8) abuse of process as to Thomas; (9) civil

conspiracy as to Thomas; (10) malicious prosecution under state law as to Thomas; (11) false light

invasion of privacy as to Thomas; (12) defamation as to Thomas; and (13) breach of contract as to

Claremore. The court addresses each of these counts in turn.

A. Count 1—Malicious Prosecution under 42 U.S.C. § 1983

In Count 1, plaintiff asserts a § 1983 claim for malicious prosecution against defendants

Thomas, Henson, and Claremore. Section 1983 provides that a person acting under color of state

law who “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the

party injured.” 42 U.S.C. § 1983. “The Fourth Amendment provides one source of rights

enforceable in a § 1983 action.” Margheim v. Buljko, 855 F.3d 1077, 1084 (10th Cir. 2017).

“Unreasonable seizures imposed with legal process precipitate Fourth Amendment malicious-

prosecution claims.” Id. at 1085 (quoting Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir.

2013)).

Tenth Circuit precedent recognizes five elements for a Fourth Amendment malicious-

prosecution claim under § 1983:

(1) the defendant caused the plaintiff’s continued confinement or prosecution;

(2) the original action terminated in favor of the plaintiff;

(3) no probable cause supported the original arrest, continued confinement, or prosecution;

(4) the defendant acted with malice; and

(5) the plaintiff sustained damages.

Margheim, 855 F.3d at 1085.

Defendants argue that plaintiff fails to state a claim because (1) probable cause supported

plaintiff’s arrest; (2) plaintiff fails to allege Henson was acting under color of law; and (3) plaintiff

fails to allege facts sufficient to establish municipal liability as to the City of Claremore. The court

addresses these arguments in turn.

1. Probable Cause

Plaintiff contends that certain information omitted from the probable cause affidavit

vitiated probable cause. “Probable cause exists if the facts and circumstances are sufficient to

warrant a person of reasonable caution to believe a crime has been committed.” McCarty v.

Gilchrist, 646 F.3d 1281, 1286 (10th Cir. 2011). If evidence was withheld, the probable cause

determination is made by considering whether, including the withheld exculpatory evidence,

probable cause existed to prosecute. Id.

Plaintiff was arrested and charged with violation of Okla. Stat. tit. 21, § 1541.2, which

requires, among other things, that the person accused acted with “intent to cheat and defraud.” See

Okla. Stat. tit. 21, § 1541.1; Okla. Uniform Jury Instructions—Criminal 5-39. Plaintiff alleges

that she reached an agreement with Claremore, through Henson, that Claremore would hold

plaintiff’s check for four days before depositing it. Plaintiff further alleges that the probable cause

affidavit used to secure the arrest warrant failed to mention this agreement. Inclusion of

information about the agreement could have vitiated probable cause by negating the essential

element of intent to cheat and defraud.1 Accepting the factual allegations in the proposed Second

Amended Complaint as true and construing them in the light most favorable to plaintiff, the court

concludes that plaintiff has adequately alleged that her arrest and prosecution were not supported

by probable cause.

1 See generally John D. Perovich, Application of “Bad Check” Statute with Respect to Postdated Checks, 52

A.L.R.3d 464 (1973); Albertson v. State, 69 A.3d 1186, 1205 (Md. Ct. App. 2013) (“[W]here there was evidence

of some form of agreement akin to a hold-check agreement, the intent element is lacking.”).

2. Color of Law

To state a claim under § 1983, a plaintiff must allege a deprivation of a federally protected

right by a person acting “under color of any statute, ordinance, regulation, custom, or usage of any

State . . . .” 42 U.S.C. § 1983. “The traditional definition of acting under color of state law

requires that the defendant in a § 1983 action exercised power possessed by virtue of state law and

made possible only because the wrongdoer is clothed with the authority of state law.” Schaffer v.

Salt Lake City Corp., 814 F.3d 1151, 1156 (10th Cir. 2016) (quoting Haines v. Fisher, 82 F.3d

1503, 1508 (10th Cir. 1996)).

Generally, “a public employee acts under color of state law while acting in his official

capacity or while exercising his responsibilities pursuant to state law.” West v. Atkins, 487 U.S.

42, 50 (1988). However, “there are some circumstances where a tort by a state employee simply

may not have been committed on account of the authority vested in the employee by the state.”

Jojola v. Chavez, 55 F.3d 488, 493 (10th Cir. 1995). “[I]t is the plaintiff’s burden to plead, and

ultimately establish, the existence of ‘a real nexus’ between the defendant’s conduct and the

defendant’s ‘badge’ of state authority in order to demonstrate action was taken ‘under color of

state law.’” Id. at 494.

Here, plaintiff asserts that “Henson was acting under color of law in that she was the Utility

Manager for the City of Claremore and acting in such capacity.” [Doc. 35 ¶ 22]. Based upon the

allegations in the Second Amended Complaint, the court can draw the reasonable inferences that

Henson accepted plaintiff’s check and advised plaintiff regarding the same while acting in her

capacity as Claremore’s utility manager and that Henson reported information about plaintiff’s

declined check to the Rogers County District Attorney’s office and to Thomas in her official

capacity, not in her private capacity. These inferences are supported by, among other things, the

allegation that Henson used her public e-mail to send documents regarding plaintiff to defendant

Thomas. [Id.].

Defendants cite the Tenth Circuit’s decision in Schaffer, 814 F.3d at 1153. In that case, a

woman sued two parking enforcement officers for malicious prosecution under § 1983, alleging

that the officers falsely reported to the police that the woman hit them with her truck after they

issued her a parking ticket. 814 F.3d at 1153. Although the incident occurred while the officers

were performing their duties as city employees, the Tenth Circuit held that the woman failed to

establish the requisite nexus between the officers’ alleged misconduct and their authority to write

parking tickets, as “any citizen can report suspicious activity to the police and repeat that testimony

in court.” Id. at 1156.

Schaffer appears distinguishable. In Schaffer, the Tenth Circuit determined on a summary

judgment record that “the parking officers, although employed by the City, acted in their private

capacities when reporting and testifying against Schaffer.” Id. at 1157. Here, plaintiff’s factual

allegations, if true, support a reasonable inference that Henson acted in her official capacity and

misused her authority as utility manager when she falsely advised plaintiff that Claremore would

hold the check for four days before depositing it and when she reported the declined check to law

enforcement without disclosing the agreement to hold the check. Accordingly, plaintiff has

adequately alleged the existence of a real nexus between Henson’s conduct and her “badge” of

public authority. Accepting the factual allegations in the proposed Second Amended Complaint as

true and construing them in the light most favorable to plaintiff, the court concludes plaintiff has

adequately alleged that Henson was acting under color of law.

3. Municipal Liability

A municipality cannot be held liable under § 1983 solely because it employs a tortfeasor.

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). “Rather, a plaintiff

must establish that (1) a policy or custom of the municipality exists and (2) the policy or custom

caused the constitutional violation.” Rife v. Oklahoma Dep’t of Pub. Safety, 854 F.3d 637, 653

n.11 (10th Cir.) (citing Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 758 (10th Cir. 2014)).

To establish municipal liability, “a plaintiff must show that the municipal action was taken with

the requisite degree of culpability and must demonstrate a direct causal link between the municipal

action and the deprivation of federal rights.” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown,

520 U.S. 397, 404 (1997).

A municipal policy or custom may take the form of (1) a formal regulation or policy

statement (2) an informal custom amounting to a widespread practice that, although not authorized

by written law or express municipal policy, is so permanent and well settled as to constitute a

custom or usage with the force of law; (3) the decisions of employees with final policymaking

authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—

of subordinates to whom authority was delegated subject to these policymakers’ review and

approval; or (5) the failure to adequately train or supervise employees, so long as that failure results

from deliberate indifference to the injuries that may be caused. Bryson v. City of Oklahoma City,

627 F.3d 784, 788 (10th Cir. 2010). Plaintiff argues that she has stated a claim against Claremore

for municipal liability “under all avenues except formal based policy.” [Doc. 48, p. 13]. The court

addresses plaintiff’s various theories of municipal liability below.

i. Informal Custom

Plaintiff alleges that municipal liability is based on “the unlawful policy of Claremore

wherein Claremore police requested personal and confidential records without a warrant or court

order.” [Doc. 35 ¶ 40]. Plaintiff alleges only a single instance in which Claremore police obtained

bank account information without a warrant. Plaintiff fails to allege any facts showing that this

“policy” amounted to “a widespread practice that . . . is so permanent and well settled as to

constitute a custom or usage with the force of law.” Bryson, 627 F.3d at 788. Moreover, plaintiff

fails to allege a direct causal link between this “policy” and any constitutional injuries she suffered.

ii. Failure to Train

Plaintiff alleges that Claremore “failed to train its officers of the legality of obtaining such

information without a court order” and “unconstitutionally trained and supervised Thomas.”

[Doc. 35 ¶¶ 53, 58]. “A municipality’s culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). “To

satisfy the statute, a municipality’s failure to train its employees in a relevant respect must amount

to ‘deliberate indifference to the rights of persons with whom the [untrained employees] come into

contact.’” Id. (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). Plaintiff fails

to allege a pattern of similar constitutional violations by untrained employees or any other facts

showing that Claremore’s alleged failure to train amounted to deliberate indifference.

iii. Hiring Decision

Plaintiff alleges that “Claremore hired Thomas with knowledge of his prior unlawful and

unconstitutional conduct and hired him anyway” and that “a competent inquiry would have

revealed the risks of and indeed the likelihood of constitutional deprivations.” [Doc. 35 ¶¶ 53, 57].

In Brown, the Supreme Court discussed § 1983 claims based on hiring decisions, observing

that such claims create “a particular danger that a municipality will be held liable for an injury not

directly caused by a deliberate action attributable to the municipality itself.” 520 U.S. at 410.

Thus, “a court must carefully test the link between the policymaker’s inadequate decision and the

particular injury alleged” in order to “prevent municipal liability for a hiring decision from

collapsing into respondeat superior liability.” Id. The Supreme Court articulated an exacting

standard that requires the plaintiff to show that the deprivation of a particular right was the “plainly

obvious consequence” of the hiring decision:

A plaintiff must demonstrate that a municipal decision reflects

deliberate indifference to the risk that a violation of a particular

constitutional or statutory right will follow the decision. Only where

adequate scrutiny of an applicant’s background would lead a

reasonable policymaker to conclude that the plainly obvious

consequence of the decision to hire the applicant would be the

deprivation of a third party’s federally protected right can the

official’s failure to adequately scrutinize the applicant’s background

constitute “deliberate indifference.”

520 U.S. at 411.

Plaintiff does not allege that Claremore’s hiring practices are generally defective, but

instead seeks to premise liability on a single hiring decision. See id. at 408 (“Where a claim of

municipal liability rests on a single decision, not itself representing a violation of federal law and

not directing such a violation, the danger that a municipality will be held liable without fault is

high.”). Plaintiff fails to allege facts showing that the deprivation of an individual’s Fourth

Amendment rights was “the plainly obvious consequence” of Claremore’s decision to hire

Thomas.2 Id. at 411. Plaintiff thus fails to allege facts showing that Claremore’s decision to hire

Thomas constituted deliberate indifference sufficient to trigger municipal liability under § 1983.

iv. Decision of a Final Policymaker

Plaintiff alleges that “Thomas was a final policy maker and decision maker” and that

“Thomas had a bullying and harassment policy or custom.” [Doc. 35 ¶¶ 53, 55]. In determining

a local government’s § 1983 liability, a court must identify those who speak with final

policymaking authority for the local governmental actor concerning the action alleged to have

caused the violation at issue. McMillian v. Monroe Cty., Ala., 520 U.S. 781, 784–85 (1997). The

2 Here, plaintiff alleges that Thomas had been placed on administrative leave as the Town Administrator for

Kingston, Massachusetts, and resigned in the wake of a gender discrimination claim filed by a female police officer.

[Doc. 35 ¶ 12]. Plaintiff also alleges that, months before, the town’s unions had alleged that Thomas “had shown

a complete lack of respect and employed bullying tactics during meetings for discussion of possible changes to

employee health insurance plans.” [Id.]. The deprivation of a citizen’s Fourth Amendment rights cannot reasonably

be said to be “the plainly obvious consequence” of Claremore’s decision to hire Thomas.

court must ask “whether governmental officials are final policymakers for the local government in

a particular area, or on a particular issue.” Id. at 785.

Here, plaintiff alleges that Thomas was Claremore’s city manager, meaning that he served

at the will of the mayor and city council and was “responsible for administering the day-to-day

operations.” [Doc. 35 ¶ 56]. Plaintiff fails, however, to allege any facts showing that Thomas had

authority to bind Claremore through his decisions on topics such as police investigations and

Rogers County charging decisions. Plaintiff further fails to identify any specific edict or act by

Thomas that may fairly be said to represent an official policy of Claremore that caused a

deprivation of plaintiff’s rights under the Fourth Amendment.

Although the Second Amended Complaint recites various legal phrases associated with

municipal liability, it fails to allege sufficient facts to state a claim of municipal liability that is

plausible on its face. Therefore, plaintiff’s § 1983 claim for malicious prosecution against

Claremore must be dismissed.

B. Count 2—Retaliation under 42 U.S.C. § 1983

In Count 2, plaintiff asserts a § 1983 claim for retaliation against defendants Thomas and

Claremore. In general, “the First Amendment prohibits government officials from subjecting an

individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct.

1715, 1722 (2019) (internal quotation mark omitted). “If an official takes adverse action against

someone based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to

provoke the adverse consequences, the injured person may generally seek relief by bringing a First

Amendment claim.” Id. (internal quotation marks omitted).

Plaintiff alleges that Thomas retaliated against her by “engendering a false arrest and

criminal prosecution” and “making defamatory conduct about her to other customers [and] city

employees and invading [her] privacy by disclosing personal information.” [Doc. 35 ¶¶ 48–49].

Thomas and Claremore argue that the statute of limitations bars plaintiff’s retaliation claim and

that, regardless of the statute of limitations, plaintiff fails to state a claim for relief.

1. Statute of Limitations

The parties agree that plaintiff’s § 1983 claims are subject to a two-year statute of

limitations. See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (two-year limitations period

under Okla Stat. tit. 12, § 95(A)(3) applies to § 1983 actions). Plaintiff filed her original petition

on April 27, 2018. Thus, the statute of limitations bars plaintiff’s § 1983 claims to the extent they

accrued prior to April 27, 2016.

Section 1983 claims generally accrue when the plaintiff had “a complete and present cause

of action.” Vasquez v. Davis, 882 F.3d 1270, 1276 (10th Cir. 2018) (quoting Wallace v. Kato, 549

U.S. 384, 388 (2007)). A First Amendment retaliatory-prosecution claim, which does not require

a favorable termination of the underlying action, accrues when the plaintiff “knew or had reason

to know of the alleged retaliatory prosecution.” Mata v. Anderson, 635 F.3d 1250, 1252 (10th Cir.

2011); see also Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994) (“Section 1983 claims accrue

when the plaintiff knows or has reason to know of the injury that is the basis of the action.”).

Plaintiff alleges that Thomas performed two retaliatory acts within the two-year limitations

period: (1) he sent a disparaging e-mail to Claremore’s mayor in August 2016 and (2) he accused

plaintiff of perjury in a statement to the media in April 2018. [Doc. 35 ¶¶ 29, 16]. To the extent

plaintiff premises her retaliation claim on these two acts, her claim is timely.

Every other retaliatory act alleged by plaintiff occurred outside the two-year limitations

period. In particular, plaintiff alleges that Thomas retaliated against her by engendering a false

arrest and prosecution. [Doc. 35 ¶ 48]. Plaintiff’s claim under this theory is time-barred because

it accrued in October 2015 when she was charged and surrendered for booking. [Id. ¶¶ 23–24].

Plaintiff also alleges that Thomas retaliated against her by disclosing personal information and

defaming her in various statements in 2015. [Id. ¶ 49]. Plaintiff’s retaliation claim based on these

statements is also time-barred because she fails to allege any circumstances suggesting that she

could not discover the statements before April 27, 2016.

i. Continuing Violation Doctrine

Plaintiff concedes that “the applicable statute of limitations on some aspects of her 1983

retaliation claims . . . would have expired but for a tolling exception.” [Doc. 48, p. 6]. She argues,

however, that the “continuing violations doctrine” saves her claims from being time-barred.

[Doc. 50, pp. 6–8]. Courts have applied the continuing violation doctrine in the Title VII

employment law context, where it “permits a Title VII plaintiff to challenge incidents that occurred

outside the statutory time limitations of Title VII if such incidents are sufficiently related and

thereby constitute a continuing pattern of discrimination.” Hunt v. Bennett, 17 F.3d 1263, 1266

(10th Cir. 1994).

In published decisions, the Tenth Circuit has repeatedly declined to address whether the

continuing violation doctrine applies to § 1983 claims. See, e.g., Vasquez, 882 F.3d at 1277; Colby

v. Herrick, 849 F.3d 1273, 1280 (10th Cir. 2017); Mata, 635 F.3d at 1253. In an unpublished

decision, however, the Tenth Circuit has held that “the doctrine of continuing violations does not

apply to § 1983 claims.” Mercer-Smith v. New Mexico Children, Youth & Families Dep’t, 416 F.

App’x 704, 712 (10th Cir. 2011). Accordingly, several district courts in this circuit have

subsequently held that the continuing violation doctrine does not apply to § 1983 claims. See, e.g.,

Doe v. Albuquerque Pub. Sch., No. 18-CV-00085 WP/KK, 2018 WL 4080684, at *5 (D.N.M. Aug.

27, 2018); Reneau v. Fauvel, No. 16-CV-00039-MSK-MJW, 2017 WL 892531, at *2 (D. Colo.

Mar. 6, 2017); Boyd v. City of Victoria, Kansas, No. 16-4106-SAC, 2017 WL 3581737, at *10 (D.

Kan. Aug. 18, 2017).

The court finds these authorities persuasive and sees no reason to extend the continuing

violation doctrine to plaintiff’s § 1983 retaliation claim. Moreover, even if the doctrine applies to

§ 1983 claims, the court is not persuaded, for the reasons set forth in section III(B)(2) below, that

plaintiff “has identified sufficiently serious injuries within the statute of limitations period such

that [she] can employ the continuing violation doctrine to sustain [her] action.” Burkley v. Corr.

Healthcare Mgmt. Of Oklahoma, Inc., 141 F. App’x 714, 716 (10th Cir. 2005) (unpublished).

ii. Tolling Based on Ongoing Conspiracy

Plaintiff also argues that her claim is timely because she has alleged an ongoing conspiracy.

[Doc. 50, p. 6]. As an initial matter, the court notes that plaintiff’s factual allegations supporting

a conspiracy theory are scant. Plaintiff asserts that “[a]ll parties acted in a conspiracy to cause

[her] to be falsely arrested.” [Doc. 35 ¶ 30]. But she alleges few facts suggesting agreement and

concerted action among the parties. “Conclusory allegations of conspiracy are insufficient to state

a valid § 1983 claim.” Hunt, 17 F.3d at 1266 (quoting Durre v. Dempsey, 869 F.2d 543, 545 (10th

Cir. 1989)).

Moreover, in the context of a civil conspiracy to violate constitutional rights, “the statute

of limitations runs separately from the occurrence of each civil rights violation that causes actual

damage to the plaintiff (as long as the plaintiff knows of or should have known of the injury), and

does not run from the date of the last overt act that causes damage to the plaintiff.” Pereira v.

Holmes, No. 06-CV-643-TCK-SAJ, 2008 WL 6159914, at *2 (N.D. Okla. Sept. 30, 2008) (internal

quotation marks omitted); see also O’Connor v. St. John’s Coll., 290 F. App’x 137, 141 (10th Cir.

2008) (unpublished) (stating that the statute of limitations in a § 1985(3) claim “runs separately

from each overt act of the conspiracy that allegedly caused injury”); Robinson v. Maruffi, 895 F.2d

649, 655 (10th Cir. 1990) (“[D]iscrete claims of [constitutional] wrongs, despite their being

averred as a continuing wrong, have been held barred where outside the time bar.”). Consequently,

plaintiff’s conspiracy allegations do not save her retaliation claim with respect to acts that allegedly

occurred in 2015.

In support of her conspiracy tolling argument, plaintiff relies on the decision in Robinson,

895 F.2d at 655. In that case, the Tenth Circuit found the police officers’ inducement of others to

give false testimony against the plaintiff was an ongoing conspiracy for malicious prosecution that

continued through the plaintiff’s murder trial. The Tenth Circuit was persuaded that the plaintiff’s

claims for false arrest and imprisonment were essentially a part of the malicious prosecution

conspiracy, and therefore did not accrue until the plaintiff was finally acquitted. Robinson is

distinguishable. The Second Amended Complaint here is devoid of allegations sufficient to raise

an inference that any alleged conspiracy between defendants Thomas and Henson continued

beyond plaintiff’s arrest. The alleged defamatory statement by Thomas in April 2018 was a

discrete act, and plaintiff fails to allege any facts suggesting that the statement was a continuation

of the alleged conspiracy between Thomas and Henson to instigate plaintiff’s prosecution in 2015.

Plaintiff cannot use a separate new act as a bootstrap to recover for injuries allegedly caused by

old acts outside the limitations period.

Plaintiff’s retaliation claim is therefore time-barred to the extent it is premised on

retaliatory acts allegedly performed by Thomas before April 2016—in other words, the claim is

time-barred except insofar as it is premised on (1) the August 2016 e-mail to the mayor and (2) the

April 2018 statement to the media.

2. Failure to State a Claim

Having determined that plaintiff’s retaliation claim is partially time-barred, the court must

next determine whether the timely allegations are sufficient to state a claim. To prevail on a First

Amendment retaliation claim against a defendant who is not her employer, a plaintiff must

establish the following elements:

(1) that the plaintiff was engaged in constitutionally protected

activity; (2) that the defendant’s actions caused the plaintiff to suffer

an injury that would chill a person of ordinary firmness from

continuing to engage in that activity; and (3) that the defendant’s

adverse action was substantially motivated as a response to the

plaintiff’s exercise of constitutionally protected conduct.

Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007) (citing Worrell v. Henry, 219

F.3d 1197, 1212 (10th Cir. 2000)). “The objective standard of a person of ordinary firmness is a

vigorous standard.” Eaton v. Meneley, 379 F.3d 949, 956 (10th Cir. 2004). Thus, “a trivial or de

minimis injury” will not suffice. Id. (quoting Poole v. County of Otero, 271 F.3d 955, 960 (10th

Cir. 2001)).

As discussed above, plaintiff’s retaliation claim, to the extent it is not time-barred, relies

on two retaliatory acts allegedly performed by Thomas: (1) a disparaging e-mail sent to

Claremore’s mayor in August 2016 and (2) a defamatory statement to the media in April 2018.

[Doc. 35 ¶¶ 29, 16]. The court addresses these two acts in turn.

The Second Amended Complaint contains only a single sentence regarding the e-mail:

Thomas continued to retaliate against Plaintiff by disparaging her in

an e-mail to the Mayor of Claremore in August of 2016 when he

referred to Plaintiff as committing a felony regarding her criminal

charges notwithstanding his knowledge that the case was dismissed.

[Doc. 35 ¶ 29]. Plaintiff fails to allege any injury she suffered as a result of this e-mail. Indeed,

she does not explain when and how she learned of the contents of an e-mail between Thomas and

the mayor. Because plaintiff has failed to allege that the e-mail caused her to suffer an injury that

would “chill a person of ordinary firmness from continuing to speak out,” she has failed to state a

retaliation claim arising out of the e-mail. Shero, 510 F.3d at 1204; see also Eaton, 379 F.3d at

954 (“For there to have been a violation of First Amendment rights, the defendant’s action must

have had a deterrent, or ‘chilling’ effect on the plaintiff’s speech.”).

One alleged retaliatory act remains as a potential basis for plaintiff’s retaliation claim: the

statement in April 2018 by Thomas that plaintiff had “committed perjury.” [Doc. 35 ¶¶ 16, 49].

Plaintiff asserts that this statement was “defamatory per se in that it connotes criminal conduct.”

[Id. ¶ 17]. As with the August 2016 e-mail, the issue is whether plaintiff has adequately alleged

that the April 2018 statement caused her to suffer an injury that would chill a person of ordinary

firmness from continuing to speak out.

In the First Amendment context, courts have recognized various forms of retaliation that

can serve as the basis for a § 1983 claim, such as termination from government employment,

prosecution, threatened prosecution, bad faith investigation, and legal harassment. See generally

Worrell, 219 F.3d at 1212. Plaintiff has not cited any case in which a court has held that allegations

of defamation were sufficient to state a claim for First Amendment retaliation under § 1983. The

Tenth Circuit “recognizes that the nature of political debate is rough and tumble.” Eaton, 379 F.3d

at 956. Thus, “not all insults in public debate become actionable under the Constitution,” and

plaintiffs “are expected to cure most misperceptions about themselves through their own speech

and debate.” Id.

The Tenth Circuit addressed somewhat analogous circumstances in Valdez v. New Mexico,

109 F. App’x 257, 263 (10th Cir. 2004) (unpublished). In that case, the plaintiff alleged that a

district attorney retaliated against him by, among other things, making defamatory comments to a

reporter that plaintiff had been accused of a crime. Id. at 261. The Tenth Circuit held that the

plaintiff failed to state a claim of First Amendment retaliation, noting that he “remained free to

express his version of events, either in a political campaign or in contacts with the press.” Id. at

263; see also How v. City of Baxter Springs, Kansas, 217 F. App’x 787, 790 (10th Cir. 2007)

(unpublished) (plaintiff failed to show injury caused by prosecutor’s false statement to newspaper

that charges against plaintiff would be refiled); Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001)

(affirming dismissal of retaliation claim on ground that defendant’s alleged actions did not cause

plaintiff to suffer an injury that would chill a person of ordinary firmness).

Here, plaintiff does not allege any actual injury she suffered as a result of the April 2018

statement, let alone an injury that would chill a person of ordinary firmness from continuing to

speak out. Even if the court were to infer that the statement harmed plaintiff’s reputation, the Tenth

Circuit has stated, in the context of a First Amendment retaliation case, that “injury to one’s

reputation is not enough to defeat constitutional interests in furthering ‘uninhibited, robust’ debate

on public issues.” Eaton, 379 F.3d at 956 (quoting Phelan v. Laramie Cty. Cmty. Coll. Bd. of

Trustees, 235 F.3d 1243, 1248 (10th Cir. 2000)); see also Blume v. Meneley, 283 F. Supp. 2d 1178,

1188 (D. Kan. 2003) (allegations of retaliation by defamation were not sufficient to state a

retaliation claim under § 1983).

The court concludes that plaintiff has failed to state a § 1983 claim for retaliation against

Thomas. Because there can be no claim of municipal liability without an underlying constitutional

violation, plaintiff also fails to state a retaliation claim against the City of Claremore.

C. Count 3—Municipal Liability

In Count 3, plaintiff asserts a claim for “municipal liability” against the City of Claremore.

Claremore argues, and plaintiff concedes, that municipal liability is not a standalone claim. Rather,

plaintiff’s claim of municipal liability is premised on her § 1983 claims, which the court has

addressed above. Because it is duplicative of Counts 1 and 2, Count 3 must be dismissed.

D. Count 4—Intentional Infliction of Emotional Distress

In Count 4, plaintiff asserts a claim for intentional infliction of emotional distress against

defendant Thomas. Under Oklahoma law, a claim for intentional infliction of emotional distress

requires a plaintiff to prove “extreme and outrageous conduct done intentionally or recklessly by

the defendant which resulted in severe emotional distress in the plaintiff.” Ridings v. Maze, 414

P.3d 835, 839 (Okla. 2018). “While ‘emotional distress includes all highly unpleasant mental

reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,

disappointment, worry, and nausea,’ it is only where the emotional distress is extreme that liability

arises.” Computer Publications, Inc. v. Welton, 49 P.3d 732, 736 (Okla. 2002) (quoting Miller v.

Miller, 956 P.2d 887, 901 (Okla. 1998)). The trial court must assume a “gatekeeper” role by

making a threshold legal determination that the defendant’s conduct may reasonably be regarded

as so extreme and outrageous as to permit recovery. Id. at 735. Similarly, the court makes an

initial determination whether severe emotional distress can be found. Id.

In the Second Amended Complaint, plaintiff asserts that Thomas “acted outrageously” and

“acted with the intent to inflict emotional distress and did cause such distress.” [Doc. 35 ¶¶ 62–

63]. Such barebones allegations are insufficient. Plaintiff fails, as a matter of law, to allege any

specific acts by Thomas that rise to the level of “extreme and outrageous conduct,” as required to

state a claim for intentional infliction of emotional distress. Moreover, plaintiff fails to plead any

allegation that she suffered severe emotional distress. Therefore, plaintiff’s claim for intentional

infliction of emotional distress must be dismissed.

E. Count 5—False Imprisonment

In Count 5, plaintiff asserts a claim for false imprisonment under Oklahoma law against

defendant Thomas.3 She alleges that Thomas “intentionally and recklessly caused [her] to be

detained against her will.” [Doc. 35 ¶ 67]. The only detention alleged by plaintiff occurred when

she surrendered for booking on October 28, 2015. [Id. ¶ 23]. The statute of limitations for false

imprisonment is one year. Okla. Stat. tit. 12, § 95(A)(4). Her claim accrued “on discharge from

3 Thomas argues that plaintiff conflates false arrest and false imprisonment under Oklahoma law. The distinction is

immaterial here because the claim is time-barred.

imprisonment,” and “it is immaterial whether the proceedings under which plaintiff was

imprisoned were terminated or not.” Belflower v. Blackshere, 281 P.2d 423, 425 (Okla. 1955).

Thus, the statute of limitations ran nearly eighteen months before plaintiff filed her petition in state

court on April 27, 2018. Plaintiff alleges no circumstances that support a tolling exception.

Therefore, plaintiff’s false imprisonment claim against defendant Thomas is untimely and must be

dismissed.

F. Count 6—False Arrest

In Count 6, plaintiff asserts a claim for false arrest under Oklahoma law against defendant

Claremore, which is a governmental entity under the GTCA. Oklahoma has adopted the doctrine

of sovereign immunity and waived that immunity “only to the extent and in the manner provided

in” the GTCA. Okla. Stat. tit. 51, § 152.1. The GTCA requires any person having a claim against

the state or a political subdivision to present notice of the claim within one year of the date the loss

occurs. See Okla. Stat. tit. 51, § 156(B) (“A claim against the state or a political subdivision shall

be forever barred unless notice thereof is presented within one (1) year after the loss occurs.”).

The GTCA defines “loss” to mean “death or injury to the body or rights of a person or damage to

real or personal property or rights therein.” Okla. Stat. tit. 51, § 152(8). “Compliance with the

statutory notice provisions of the GTCA is a jurisdictional requirement to be completed prior to

the filing of any pleadings.” Hall v. GEO Grp., Inc., 324 P.3d 399, 404 (Okla. 2014).

The only arrest alleged by plaintiff occurred when she surrendered for booking on October

28, 2015. [Id. ¶ 23]. The GTCA required plaintiff to present notice of her claim for false arrest

within one year—that is, by October 27, 2016. According to plaintiff, Claremore received her

claim notice on July 31, 2017. [Doc. 48, p. 10]. She thus presented notice eight months after the

statutory deadline. Plaintiff asserts that the limitations period “did not begin to run until the

conclusion of her criminal case [August 19, 2016] as a result of the on-going conspiracy and

continuing violations.” [Doc. 48, p. 10]. Plaintiffs fails, however, to cite any authority supporting

such an exception to the GTCA’s notice requirements. Because plaintiff failed to comply with the

GTCA’s notice requirements, her claim for false arrest against Claremore must be dismissed.

G. Count 7—Invasion of Privacy

In Count 7, plaintiff asserts a claim for invasion of privacy against defendant Thomas. She

alleges that Thomas invaded her privacy “by causing her confidential bank information to be

disclosed” and “by disclosing her information to residents and others.” [Doc. 35 ¶¶ 76–77]. The

pertinent conduct allegedly occurred in September and October 2015. [Id. ¶¶ 25, 29]. Under

Oklahoma law, the limitations period for plaintiff’s invasion-of-privacy claim is two years. See

Okla. Stat. tit. 12, § 95(A)(3); Woods v. Prestwick House, Inc., 247 P.3d 1183, 1186 (Okla. 2011).

As discussed above, plaintiff does not allege any circumstances that support application of a tolling

exception. Because plaintiff filed her initial petition approximately six months after the two-year

limitations period ran, the statute of limitations bars her invasion-of-privacy claim, which must be

dismissed.

H. Count 8—Abuse of Process

In Count 8, plaintiff asserts a claim for abuse of process against defendant Thomas. She

alleges that Thomas “used the legal process, including causing Plaintiff to be detained.” [Doc. 35

¶ 83]. The only relevant uses of legal process identified by plaintiff allegedly occurred on October

28, 2015, when a warrant for her arrest was issued and a felony charge was filed. [Id. ¶ 23–24].

Under Oklahoma law, the limitations period for an abuse-of-process claim is two years. See Okla.

Stat. tit. 12, § 95(A)(3); Greenberg v. Wolfberg, 890 P.2d 895, 905 (Okla. 1994). The claim accrues

“when the process is abused and damages are incurred, regardless of when the action is

determined.” Id. As discussed above, plaintiff does not allege any circumstances that support

application of a tolling exception. Because plaintiff filed her initial petition approximately six

months after the two-year limitations period ran, her abuse-of-process claim is time-barred and

must be dismissed.

I. Count 9—Civil Conspiracy

In Count 9, plaintiff asserts a claim for civil conspiracy against defendant Thomas. Under

Oklahoma law, a civil conspiracy “consists of a combination of two or more persons to do an

unlawful act, or to do a lawful act by unlawful means.” Gaylord Entm’t Co. v. Thompson, 958

P.2d 128, 148 (Okla. 1998). Civil conspiracy “does not itself create liability.” Id. Instead, “a civil

conspiracy claim enlarges the pool of potential defendants from whom a plaintiff may recover for

an underlying tort.” Id. at 148 n.85.

Plaintiff alleges that “Thomas and Henson conspired to deprive Plaintiff of her rights” and

that their conduct “was done unlawfully and for an unlawful purpose.” [Doc. 35 ¶¶ 89–90]. These

conclusory allegations are insufficient to state a plausible claim for civil conspiracy under

Oklahoma law. See Cantwell v. De La Garza, No. CV-18-272-D, 2018 WL 5929638, at *4 (W.D.

Okla. Nov. 13, 2018) (finding allegations insufficient to state a civil conspiracy claim). In her

response, plaintiff states that “the same facts that give rise to a tortious interference claim also give

rise to Plaintiff’s conspiracy claim.” [Doc. 50, p. 15]. The meaning of this sentence is unclear, as

plaintiff has not asserted a tortious interference claim in this case.

In addition, plaintiff’s state-law conspiracy claim serves no apparent purpose. To the extent

plaintiff asserts state-law claims against Thomas based on his individual actions (e.g., defamation

based on his April 2018 statement), the conspiracy claim against him adds nothing. To the extent

plaintiff asserts state-law claims against Thomas based on the actions of Henson as Thomas’s co-

conspirator, such claims are time-barred for the reasons set forth in other portions of this order. It

appears plaintiff asserts a civil-conspiracy claim in an attempt to avoid the statute of limitations,

which has expired for the majority of her state-law claims. However, all of plaintiff’s conspiracy

allegations against Thomas and Henson relate to acts that occurred in 2015. Plaintiff does not

plausibly allege that Thomas’s defamatory statement in April 2018 was part of his alleged

conspiracy with Henson. Plaintiff cannot use Thomas’s alleged defamatory statement in 2018 to

revive time-barred claims arising from separate acts in 2015. Accordingly, plaintiff’s state-law

claim for civil conspiracy against Thomas must be dismissed.

J. Count 10—Malicious Prosecution under State Law

In Count 10, plaintiff asserts a state-law claim for malicious prosecution against defendant

Thomas. Under Oklahoma law, the limitations period for a malicious-prosecution claim is one

year. See Okla. Stat. tit. 12, § 95(A)(4). Plaintiff’s malicious-prosecution claim accrued no later

than August 2016, when the criminal case against plaintiff was dismissed and the government

declined to appeal. [Doc. 35 ¶¶ 31–32]. See generally Greenberg, 890 P.2d at 904 (discussing

accrual of malicious-prosecution claims under Oklahoma law). The statute of limitations expired

one year later in August 2017, approximately ten months before plaintiff filed her petition in state

court.

Plaintiff concedes that the statute of limitations for a malicious-prosecution claim

ordinarily runs from the dismissal of the criminal case. [Doc. 50, p. 15]. She argues, however,

that “the statute was tolled by the last continual act within the conspiracy—the defamatory conduct

of Thomas.” [Id.]. The court finds this argument unpersuasive. Thomas’s alleged defamatory

statement in April 2018 has no bearing on when plaintiff could have first maintained a cause of

action against Thomas for malicious prosecution. Plaintiff fails to cite any authority for the

proposition that an ongoing civil conspiracy tolls the statute of limitations for a malicious

prosecution claim under Oklahoma law. Moreover, plaintiff fails to allege facts sufficient to

support an inference that Thomas’s statement in April 2018 was a part of his alleged conspiracy

with Henson in 2015. Plaintiff cannot use the 2018 statement to revive her time-barred malicious

prosecution claim. Therefore, plaintiff’s claim against defendant Thomas for malicious

prosecution under Oklahoma law must be dismissed.

K. Count 11—False Light Invasion of Privacy

In Count 11, plaintiff asserts a claim for false light invasion of privacy against defendant

Thomas. The Oklahoma Supreme Court has recognized the tort of false light invasion of privacy

as set out in the Restatement (Second) of Torts § 652A (1977). McCormack v. Oklahoma Pub.

Co., 613 P.2d 737, 740 (Okla. 1980). In order to establish such a claim, a plaintiff must establish

three elements:

(1) the defendant gave publicity to a matter concerning the plaintiff

that placed the plaintiff before the public in a false light, (2) the false

light in which the plaintiff was placed would be highly offensive to

a reasonable person, and (3) the defendant had knowledge of or

acted in reckless disregard as to the falsity of the publicized matter

and the false light in which the other would be placed.

Mitchell v. Griffin Television, L.L.C., 60 P.3d 1058, 1061 (Okla. Ct. Civ. App. 2002) (citing

McCormack, 613 P.2d at 740).

Plaintiff alleges that Thomas placed her before the public in a false light by stating to the

media, on or about April 30, 2018, that plaintiff had “committed perjury.” [Doc. 35 ¶¶ 16, 98].

Thomas argues that plaintiff’s allegations suffer various deficiencies. He argues that plaintiff fails

to allege that he knew his statements were false. Plaintiff does, however, expressly allege that

Thomas made the comment “knowing it to be false.” [Doc. 35 ¶ 49]; see also FED. R. CIV. P. 9(b)

(knowledge may be alleged generally). Thomas also argues that plaintiff fails to allege sufficient

“contextual information,” suggesting that the news media took his comments out of context or that

he merely expressed an opinion. [Doc. 39, p. 27]. Accepting the factual allegations in the Second

Amended Complaint as true and construing them in the light most favorable to plaintiff, the

statement that plaintiff “committed perjury” appears to be a factual assertion, not a pure opinion.

Plaintiff has therefore alleged “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570.

L. Count 12—Defamation

In Count 12, plaintiff asserts a defamation claim against defendant Thomas. She alleges

that Thomas defamed her “by making false public statements of fact against her.” [Doc. 35 ¶ 104].

In order to recover for defamation under Oklahoma law, a private figure generally must prove four

elements:

(1) a false and defamatory statement, (2) an unprivileged publication

to a third party, (3) fault amounting at least to negligence on the part

of the publisher; and (4) either the actionability of the statement

irrespective of special damage, or the existence of special damage

caused by the publication.

Mitchell, 60 P.3d at 1061; see also Okla. Stat. tit. 12, § 1441 (defining libel); Okla. Stat. tit. 12,

§ 1442 (defining slander).

Defendant Thomas argues that plaintiff fails to state a claim because she fails to state

specifically the amount of special damages. [Doc. 39, p. 29]. Plaintiff contends, however, that

Thomas’s statements constitute slander per se. Slander is actionable per se, without a showing of

actual damage, if it charges the plaintiff with a crime. See Mitchell 60 P.3d at 1061; Okla. Stat. tit.

12, § 1442(1). Plaintiff alleges that Thomas accused her of perjury, which is a crime. Because

plaintiff plausibly alleges slander per se, she is not required to plead specific damages. Plaintiff

has therefore alleged enough facts to state a claim for defamation that is plausible on its face.

M. Count 13—Breach of Contract

In Count 13, plaintiff asserts a claim for breach of contract against defendant Claremore.

Under Oklahoma law, the elements of breach-of-contract claim are (1) the formation of a contract,

(2) breach of the contract, and (3) damages as a result of that breach. Cates v. Integris Health,

Inc., 412 P.3d 98, 103 (Okla. 2018). Formation of a contract requires (1) parties capable of

contracting, (2) their consent, (3) a lawful object, and (4) sufficient cause or consideration. Okla.

Stat. tit. 15, § 2. Plaintiff alleges two potential bases for her breach-of-contract claim, which the

court addresses below.

1. Policy Regarding Dishonored Checks

Plaintiff alleges that Claremore disconnected her utilities “despite a written policy in place

regarding dishonored checks that required advance notice prior to disconnection and a 24-hour

period to make good on any dishonored check.” [Doc. 35 ¶ 21]. Plaintiff fails to allege sufficient

facts regarding this supposed breach of policy to state a claim for relief that is plausible on its face.

For example, she does not allege where that written policy was codified or otherwise published,

how it imposed contractual obligations on Claremore,4 or whether she received a cut-off notice

prior to disconnection of her utilities.5 She also does not allege any damages caused by

disconnection of her utilities.

2. Hold-Check Agreement

Plaintiff also alleges that she “reached an agreement with Claremore via Henson,” pursuant

to which plaintiff “would give a check to Claremore for the bill and Claremore would hold the

check for four days before depositing.” [Doc. 35 ¶¶ 14, 20]. Plaintiff suggests that Claremore

breached the agreement by depositing the check after only one day. Plaintiff fails to state a breach-

of-contract claim under this theory for two reasons.

4 The court takes judicial notice of Title 5, Chapter 50, § 7 of the Claremore Code of Ordinances, which provides, in

pertinent part: “It is the policy of the city to discontinue utility service to consumers by reason of non-payment of

bills only after notice and a meaningful opportunity to be heard on disputed bills.” See Zimomra v. Alamo Rent-A-

Car, Inc., 111 F.3d 1495, 1504 (10th Cir. 1997) (court may take judicial notice of municipal ordinances on a motion

to dismiss). Notably, this section does not mention “a 24-hour period to make good on any dishonored check.”

5 Plaintiff’s allegations indicate she was aware of the possibility of her utilities “being disconnected as a result of her

difficulty in paying the bill.” [Doc. 35 ¶ 14].

First, plaintiff fails to allege facts establishing that Henson had authority to bind Claremore

in the manner alleged. Under Oklahoma law, “a party asserting agency has the burden of proof to

show the ‘existence, nature and extent of the agency relationship.’” Bayless v. Christie, Manson

& Woods Int’l, Inc., 2 F.3d 347, 352 (10th Cir. 1993) (quoting Enterprise Mgmt. Consultants, Inc.

v. Oklahoma Tax Commission, 768 P.2d 359, 362 (Okla. 1988)). Pursuant to Claremore’s Code of

Ordinances, Henson did not have the authority to enter into an oral agreement of the kind alleged.

The court takes judicial notice of Title 5, Chapter 50, § 8 of the Claremore Code of Ordinances,

which provides, in pertinent part, that “[a]ll delayed payment agreements shall contain,” among

other things, the “[s]ignature of the customer and the city official in charge of utility billing.”

Because plaintiff does not allege the existence of an agreement signed by Henson as required by

§ 8, she fails to plausibly allege the formation of a contract enforceable against Claremore.

Plaintiff argues that Claremore’s policies are “irrelevant to the existence of a contract.”

[Doc. 48, p. 18]. The court disagrees. “[I]f a person has means of knowledge reasonably open to

him as to the limits of the agent’s authority, he cannot hold the principal unless he uses ordinary

diligence to ascertain them, even in those situations in which a principal is otherwise held although

the agent goes beyond his authority. He has means of knowledge if he knows or has reason to know

that the authority is evidenced by a document open to and intended for his inspection.” Bayless, 2

F.3d at 353 (quoting State v. West, 796 P.2d 1178, 1181 (Okla. Ct. Civ. App. 1990)). Here, plaintiff

had means of knowledge reasonably open to her as to the limits of Henson’s authority, as Title 5,

Chapter 50, § 1 of the Claremore Code of Ordinances provides as follows:

The rates, rules and regulations contained in this chapter shall be

considered a part of the contract between every person . . . who is

supplied with electrical energy by the city. Every person . . . who

uses electrical energy pursuant thereto shall be held to have

consented thereto and be bound thereby.

Second, plaintiff fails to identify any consideration supporting Claremore’s alleged

promise to hold the check for four days. Sufficient consideration is an essential element of a

contract. Thompson v. Bar-S Foods Co., 174 P.3d 567, 574 (Okla. 2007) (citing Okla. Stat. tit. 15,

§ 2); see also Powers Restaurants, Inc. v. Garrison, 465 P.2d 761, 763 (Okla. 1970) (“A promise

made without supporting consideration is unenforceable.”). By statute, good consideration for a

promise is defined as follows:

[a]ny benefit conferred, or agreed to be conferred upon the promisor,

by any other person, to which the promisor is not lawfully entitled,

or any prejudice suffered or agreed to be suffered by such person,

other than such as he is at the time of consent lawfully bound to

suffer, as an inducement to the promisor.

Okla. Stat. tit. 15, § 106. “As a general rule, consideration exists as long as there is a benefit to

the promisor or a detriment to the promisee.” Thompson, 174 P.3d at 574. “Generally, the

sufficiency of consideration is a question of law to be determined by the court.” Hargrave v.

Canadian Valley Elec. Co-op., Inc., 792 P.2d 50, 56 (Okla. 1990).

Plaintiff argues that Claremore bears the burden of showing a want of consideration.

[Doc. 48, p. 18]. By statute, “[t]he burden of showing a want of consideration sufficient to support

an instrument lies with the party seeking to invalidate or avoid it.” Okla. Stat. tit. 15, § 115

(emphasis added). By definition, the term “instrument” refers to a “written legal document.”

Instrument, Black’s Law Dictionary (11th ed. 2019) (emphasis added); accord Okla. Uniform Jury

Instruction–Civil 23.8, Notes on Use (“Who has the burden of proof on the issue of consideration

will depend on whether the contract is written or oral.”). Plaintiff does not allege the existence of

a written contract; instead, she appears to premise her claim on an alleged oral promise.

Accordingly, plaintiff bears the burden of pleading consideration sufficient to support formation

of a contract.

Plaintiff identifies no benefit conferred on Claremore—“to which [Claremore was] not

lawfully entitled”—as an inducement for Claremore’s promise to hold the check for four days.

Nor does plaintiff identify any prejudice she suffered—“other than such as [she was] at the time

of consent lawfully bound to suffer”—as an inducement to Claremore. Because plaintiff had a

preexisting legal duty to pay for utility services that she had previously received, her performance

of that duty did not constitute consideration for Claremore’s alleged promise. See Watson v. Am.

Creosote Works, 84 P.2d 431, 433 (Okla. 1938) (“An agreement to do, or the doing of, that which

a person is already bound to do, does not constitute a sufficient consideration for a new promise.”).

Plaintiff suggests that the consideration was “not simply paying but paying with a check.”

[Doc. 48, p. 19]. Some authorities recognize that payment “in a different medium” from that

required by a preexisting duty can, in some circumstances, constitute consideration for a new

promise. Restatement (Second) of Contracts § 73, cmt. c, illus. 7 (1981); see also 3 Williston on

Contracts § 7:27 (4th ed.). Under the Restatement formulation, a similar performance will

constitute consideration only if it is different from what was originally required of the debtor “in

a way which reflects more than a pretense of bargain.” Restatement (Second) of Contracts § 73.

Here, there are no allegations suggesting that Claremore preferred payment by check or that

payment by check somehow served as an inducement to Claremore. Plaintiff therefore fails to

allege sufficient consideration for Claremore’s alleged promise.

Because plaintiff fails to allege facts showing that Henson had authority to bind Claremore

in the manner alleged and fails to allege consideration for Claremore’s alleged promise, her breach-

of-contract claim must be dismissed.

IV. Conclusion

WHEREFORE, the Motion to Dismiss [Doc. 39] filed by defendant James Thomas is

granted in part and denied in part; the Motion to Dismiss [Doc. 40] filed by defendant City of

Claremore is granted; and the Motion to Dismiss [Doc. 43] filed by defendant Felicia Henson is

denied. Defendant Thomas’s motion is granted with respect to Counts 2, 4, 5, 7, 8, 9, and 10, and

is otherwise denied.

IT IS SO ORDERED this 31st day of July, 2019.