Wade v. City of Tulsa

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

RONALD G. WADE, JR., )

)

Plaintiff, )

)

v. ) Case No. 19-cv-120-JED-FHM

)

CITY OF TULSA, et al. )

)

)

Defendants. )

OPINION AND ORDER

I. Plaintiff’s Claims

In his Amended Complaint (Doc. 4), the plaintiff asserts claims under 42 U.S.C. § 1983

and state tort claims against the City of Tulsa and Officer Don Deramus of the Tulsa Police

Department (TPD). The plaintiff alleges that his constitutional rights under the Fourth and

Fourteenth Amendments were violated when Officer Deramus took plaintiff into protective

custody upon allegations that he threatened a Tulsa attorney, Jason Robertson, and his family.1

Plaintiff asserts that his detention was without probable cause, premised upon

manufactured evidence, and resulted in his detention in mental health facilities for 34 days. (Doc.

1 Plaintiff has filed several related lawsuits. Plaintiff’s issues with attorney Jason Robertson

apparently began when Robertson, representing the City of Glenpool, was successful in having

plaintiff’s suit against the City of Glenpool dismissed. (See CJ-2016-1105, Tulsa County District

Court). Thereafter, plaintiff filed suit against several Glenpool employees, who were also

represented by Mr. Robertson. (CS-2017-3452, Tulsa County District Court). That action was also

dismissed pursuant to the Oklahoma Governmental Tort Claims Act. (Id., September 1, 2017

Order). Plaintiff attempted to add Robertson’s law firm and other parties in that case. (See id.,

docket). Plaintiff later filed an action in this District, 18-CV-102-GKF-FHM, against the Tulsa

County District Court, Court Clerk, Mr. Robertson, Tulsa County Judges Kirsten Pace and William

Musseman, the City of Glenpool, OMAG, and Mr. Robertson’s law firm. Judge Frizzell dismissed

that Complaint, with prejudice. Sixteen days after the plaintiff filed the instant suit before the

undersigned, he filed another lawsuit against the City of Tulsa, as well as TPD Chief Chuck Jordan,

“Internal Affairs,” and the Mayor of Tulsa, G.T. Bynum. (See 19-CV-158-TCK-JFJ).

4 at 15). The plaintiff alleges that his detention was the result of a Peace Officer’s Statement for

Protective Custody (Doc. 4 at 23), completed by TPD Officer Deramus. The plaintiff isolates one

particular sentence in Officer Deramus’s Statement, which provides: “Ron Wade began to sent

[sic] Robertson emails that stated he knows where Robertsons [sic] lives and what his family looks

like.” (See Doc. 4 at 3, 23). Plaintiff alleges that sentence was a “falsified threat” that was

“inserted” by Deramus “so the Plaintiff could be picked up . . . as representing a clear threat to the

well being of Mr. Robertson and his family.” (Doc. 4 at 3).

In support of his § 1983 claim against Officer Deramus, the plaintiff also alleges that, when

he was taken into protective custody, he asked Officer Deramus for the justification for his

detention, and Officer Deramus refused to provide the Peace Officer’s Statement to him, in

violation of Okla. Stat. tit. 43A, § 5-207. That statute provides that “[t]he officer shall give a copy

of the [peace officer’s] statement to the person or the person’s attorney upon the request of either.”

(See Doc. 4 at 8 [alleging a violation of § 5-207(C)]). After Deramus transported the plaintiff to

the Tulsa Center for Behavioral Health (TCBH), the intake doctor there permitted the plaintiff to

read Deramus’s statement. (Id.).

In his Third Cause of Action, plaintiff alleges that Officer Deramus, along with attorney

Jason Robertson, violated § 1983 by causing a continued prosecution and threat of confinement of

the plaintiff. (See id. at 17). As part of his Sixth Cause of Action under the Oklahoma

Governmental Tort Claims Act, plaintiff also references a violation of the Fourteenth Amendment

to the United States Constitution because Officer Deramus transported plaintiff to a mental facility

“where it was customary to immediately control patients with psychiatric drugs.” (Id. at 20).

For his § 1983 claim against the City of Tulsa, plaintiff asserts that “the only ‘duty of care’

for the City of Tulsa was to produce a single email containing the base threat [against the Tulsa

attorney], that should have been possessed by Officer Deramus, all along.” (Doc. 4 at 16). Plaintiff

further alleges in conclusory fashion that the City “maintained and permitted an official and

custom of permitting the occurrence of the types of wrongs set forth herein above and hereafter,”

and had a “policy of allowing arrests without probable cause and failing to obtain pertinent

exculpatory and inculpatory evidence.” (Doc. 4 at 16). Plaintiff further alleges that the City’s

“policies and customs include the deliberate indifference in the training of it’s [sic] officers in

making lawful detentions,” “express and/or tacit encouragement and acceptance of

detentions/arrests without probable cause, the ratification of police misconduct, and the failure to

conduct adequate investigation of police misconduct, such that future violations do not occur.”

(Id.). Regarding causation, plaintiff asserts that he is “informed and believes . . . that the customs

and policies were the moving force behind the violations of Plaintiff’s rights.” (Id.). The Amended

Complaint also alleges tort claims for negligence, malicious prosecution, and assault by officers

against the City of Tulsa. (Id. at 19-20).

The defendants have moved to dismiss (Doc. 9, 29). The plaintiff filed responses (Doc.

13, 30).

II. Applicable Dismissal Standards

To survive dismissal for failure to state a claim, the complaint must provide “more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The standard requires “enough facts to state

a claim to relief that is plausible on its face,” and the factual allegations “must be enough to raise

a right to relief above the speculative level.” Id. at 555-56, 570 (citations omitted).

Plaintiff is proceeding pro se. While pro se pleadings must be liberally construed and must

be held to less stringent standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404

U.S. 519, 520 (1972), a district court should not assume the role of advocate. Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991); United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009);

Garret v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Moreover, even pro

se plaintiffs are required to comply with the “fundamental requirements of the Federal Rules of

Civil and Appellate Procedure” and substantive law, and the liberal construction to be afforded

does not transform “vague and conclusory arguments” into valid claims for relief. Ogden v. San

Juan County, 32 F.3d 452, 455 (10th Cir. 1994). The court “will not supply additional factual

allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”

Whitney v. New Mexico, 113 F.3d 1170, 1173-1174 (10th Cir. 1997).

III. Claims Against Officer Deramus

A. Section 1983 Claims

1. Duplicative “Official Capacity” Claim Against Officer Deramus

Officer Deramus first notes that the plaintiff purports to include him as a defendant both

“individually and in his official capacity.” (Doc. 29 at 4; See Doc. 4 at 1). A suit against an official

in his or her official capacity is the same as asserting a claim against the municipality the official

represents and is considered under the standards applicable to 42 U.S.C. § 1983 claims against

municipalities. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010); see also Kentucky v.

Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name,

to be treated as a suit against the entity.”). Because plaintiff has also named the City as a defendant,

and standards governing municipal liability apply to that claim just as they apply to an official

capacity claim, any official capacity suit against Officer Deramus is duplicative and should be

dismissed.

2. Qualified Immunity

Officer Deramus asserts qualified immunity. (Doc. 29 at 6-10). Where qualified immunity

is raised at the dismissal stage, the Court must accept all well-pleaded allegations as true and view

them in a light most favorable to the plaintiff. See Schwartz v. Booker, 702 F.3d 573, 579 (10th

Cir. 2012). “To survive a motion to dismiss based on qualified immunity, the plaintiff must allege

sufficient facts that show – when taken as true – the defendant plausibly violated [plaintiff’s]

constitutional rights, which were clearly established at the time of the violation.” Id. (quoting

Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)). “When a defendant asserts qualified

immunity, . . . the burden shifts to the plaintiff to establish (1) a violation of a constitutional right

(2) that was clearly established.” Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). This is a

“‘heavy, two-part burden’ that the plaintiff must meet,” and “[f]ailure on either element is fatal to

the plaintiff’s claims.” Id. (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)).

“The plaintiff bears this heavy burden because we presume that law enforcement officers

‘are immune from lawsuits seeking damages for conduct they undertook in the course of

performing their jobs.’” Puller, 781 F.3d at 1196 (quoting Kerns v. Bader, 663 F.3d 1173, 1180

(10th Cir. 2011)). The courts have discretion to determine “which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances in the particular

case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

a. Alleged Constitutional Violation

Here, the plaintiff contends that his constitutional rights were violated by Officer

Deramus’s Statement for Protective Order, which allegedly contained a false statement. The

plaintiff also argues that the “core issue” in this case “is whether probable cause can legally exist.”

(Doc. 30 at 1). Under the language of the applicable Oklahoma statute, “[a]ny peace officer who

reasonably believes that a person is a person requiring treatment as defined in Section 1-103 of

this title shall take the person into protective custody.” Okla. Stat. tit. 43A, § 5-207(B)(1).

“‘Person requiring treatment’ means a person who because of his or her mental illness . . . has

placed another person or persons in a reasonable fear of violent behavior directed towards such

person or persons or serious physical harm to them as manifested by serious and immediate

threats.” Id., § 1-103(13)(a)(3). Upon the reasonable belief that a person meets that definition,

the person may “be transported to an appropriate medical facility for medical treatment” where a

“treating physician may authorize that the person be detained until the person becomes medically

stable.” Id., § 5-207(E).

In a similar context regarding alleged false statements in an affidavit for a warrant, the

courts have held that a law enforcement official violates the Fourth and Fourteenth Amendments

by knowingly, or with reckless disregard for the truth, making a false statement that was necessary

to a determination of probable cause. See, e.g., Franks v. Delaware, 438 U.S. 154, 155-56 (1978);

Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990); see also Bruning v. Pixler, 949 F.2d

352, 357 (10th Cir. 1991) (citing cases). In such a case, the Court “measure[s] probable cause by

(1) removing any false information from the affidavit, (2) including any omitted material

information, and then (3) inquiring whether the modified affidavit establishes probable cause for

the warrant.” Puller, 781 F.3d at 1197 (citing Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir.

1996)). Once that test is applied, if the modified affidavit still provides sufficient information for

a finding of probable cause, the plaintiff cannot establish a constitutional violation. See id. at 1200

(citations omitted).

In this case, the plaintiff repeatedly avers that one sentence in Officer Deramus’s Statement

for Protective Custody was false: “Ron Wade began to sent [sic] Robertson emails that stated he

knows where Robertsons [sic] lives and what his family looks like.” (See Doc. 4 at 3, 23).

According to plaintiff, that sentence was a “falsified threat” that was “inserted” by Deramus “so

the Plaintiff could be picked up under [Okla. Stat. tit. 43A] § 1-103, as representing a clear threat

to the well being of Mr. Robertson and his family.” (Doc. 4 at 3). While the plaintiff focuses on

only one sentence, the full statement by Officer Deramus referred to a call from Mr. Robertson

about threats, as well as several threats to Robertson and others:

I was called by Jason Robertson to investigate threatening emails sent by Ron

Wade. Robertson is a lawyer hired by the City of Glenpool to represent them in a

lawsuit filed by Ron Wade. After the lawsuit was dismissed several times, Ron

Wade begin to sen[d] Robertson emails that stated he knows where Robertsons [sic]

lives and what his family looks like. Wade has continued to send emails to

Robertson even after being told to stop by law enforcement. On 05/09/18, Wade

sent over twenty emails to the Warren Foundation . . . One of the emails stated, that

he (Wade) was going to “Take out an attorney and two judges.” The next email

stated that “Jason was going to burn now,” and he was “Going to send Jason’s

family to a place to heal.” Wade has been focused on Robertson for over a week

and has sent hi[m] over 40 threatening emails. TPD has completed three

threatening letter reports. Wade also posted on Facebook today, that he was going

to Robertson’s law office . . . and put this to end, “The only question I have to ask

myself is how spectacular do I want to the end to be because it will end and I can

make it the media event of well….forever.”

(Doc. 4 at 23).

Removing the sentence that the plaintiff alleges to be false does not vitiate probable cause.

In other words, without that sentence, Officer Deramus’s statement still contained sufficient

information to establish probable cause to believe that the plaintiff posed a threat to others or (in

the language of the Oklahoma statute) a “reasonable belie[f] that” plaintiff was “a person requiring

treatment as defined in Section 1-103.” Okla. Stat. tit. 43A, § 5-207(B)(1). That is because,

without the allegedly false assertion that plaintiff sent emails that he knew where Robertson lives

and what his family looks like, Deramus’s Statement provided information about additional

threats, including the following: (1) Jason Robertson called Deramus about threatening emails; (2)

in one day, plaintiff sent over 20 emails to the Warren Foundation, one of which stated that plaintiff

was going to “[t]ake out an attorney and two judges”; (3) in another email, plaintiff stated that

“Jason [Robertson] was going to burn now” and plaintiff would “send Jason’s family to a place to

heal”; (4) plaintiff sent Robertson over 40 threatening emails; (5) TPD had completed three

threatening letter reports; (6) plaintiff continued to send emails to Robertson after law enforcement

informed him he should stop; and (7) on the day Deramus signed the statement, the plaintiff posted

on Facebook that he was going to Robertson’s law office and stated that “[t]he only question I

have to ask myself is how spectacular do I want the end to be because it will end and I can make

it the media event of well …. forever.” (Doc. 4 at 23). Thus, Deramus’s Statement referenced

numerous other threats by the plaintiff, which would support a reasonable belief that he had placed

persons “in a reasonable fear of violent behavior . . . or serious physical harm to them as manifested

by serious and immediate threats” and he was not going to stop the threatening communications.

Id., § 1-103(13)(a)(3). As a result, the plaintiff cannot establish a violation of the Fourth

Amendment.

As part of the § 1983 claim in his First Cause of Action, plaintiff also asserts that Officer

Deramus refused to provide him the written Statement, in violation of Okla. Stat. tit. 43A, § 5-

207(C). (See Doc. 4 at 8). According to plaintiff’s allegations, he did not see the Statement until

two or three hours later, after he had been transported to TCBH. (Id.; see also Doc. 30 at 23-24).

The rights being vindicated under § 1983 are federal rights, and a violation of a state law or

regulation does not in itself establish a violation of the United States Constitution. See Davis v.

Scherer, 468 U.S. 183, 194-96 (1984) (“Officials sued for constitutional violations do not lose

their qualified immunity merely because their conduct violates some [state] statutory or

administrative provision.”); Cummings v. Dean, 913 F.3d 1227, 1243-45 (10th Cir. 2019) (even

if state law may be relevant, the plaintiff must allege a violation of rights under federal law);

Erikson v. Pawnee County Bd. Of County Comm’rs, 263 F.3d 1151, 1153, n.2 (10th Cir. 2001).

The plaintiff has not stated a claim under § 1983 for an alleged violation of the state statute.

In his Third Cause of Action, plaintiff alleges that Officer Deramus, “in concert with”

attorney Jason Robertson and Tom Cooper, President of the Warren Foundation, violated § 1983

by causing the continued prosecution and threat of confinement of the plaintiff. (See Doc. 4 at 17;

see also id. at 7). That claim does not state a plausible claim for relief, as it is bereft of any factual

allegations that are distinct from his First Cause of Action, which is deficient as noted above.2

The Court also notes that much of the conduct of which plaintiff complains was the result

of mental health facility staff determining that he was not stable to leave their facilities, and those

determinations were – by plaintiff’s own allegations – based at least in part upon plaintiff’s own

conduct. For example, according to plaintiff, he was uncooperative at TCBH, he went on a hunger

strike and refused to accept any treatment or to provide any information to mental health staff,

while demanding to see the email in which he allegedly referred to knowing where Robertson lives

and what his family looks like. (See Doc. 4 at 8-11). He was later transferred to Laureate, where

he continued to inform mental health staff that he “just wanted the email, so the Plaintiff could

begin therapy.” (Id. at 11). Plaintiff’s pleading contains numerous complaints regarding the

mental health staff, including one doctor’s determination that the plaintiff was “homicidal.” (Id.).

After 18 days in mental health custody, the plaintiff alleges that he made up a “trauma” about his

ex-wife and made her a “villain,” which elicited tears from him, and he was subsequently released

on May 31, 2018, after 22 days. (Id.). During his first outpatient appointment on June 6, 2018,

2 With respect to the plaintiff’s allegation that Robertson violated § 1983, Judge Frizzell

dismissed plaintiff’s § 1983 claim against Mr. Robertson because he is not a state actor. (See 18-

CV-102-GKF-FHM, Doc. 25 at 3-4).

plaintiff refused to complete paperwork. Two days later, he was thus picked up by Tulsa County

Deputies and transported back to TCBH, due to non-compliance with his treatment plan. (Id. at

12). He then spent an additional 12 days at TCBH. (Id.). Plaintiff also alleges that he suffered

injury, including a rare blood disorder, from medications he was prescribed in the mental health

institutions. (See id. at 13-14). Plaintiff has cited no authority that would place responsibility

upon Officer Deramus for the mental health staff’s determination to detain the plaintiff in those

facilities until such time as they believed he was stable enough to leave.3

As part of his Sixth Cause of Action under the Oklahoma Governmental Tort Claims Act,

plaintiff also references a violation of the Fourteenth Amendment to the United States Constitution

because Officer Deramus transported plaintiff to a mental facility “where it was customary to

immediately control patients with psychiatric drugs.” (Doc. 4 at 20). His Amended Complaint is

devoid of any facts, and he has provided no law, to establish that Officer Deramus was responsible

for TCBH’s or Laureate’s prescription of psychiatric drugs to the plaintiff.

In short, the plaintiff has not alleged sufficient facts to state any plausible claims against

Officer Deramus for a violation of the plaintiff’s federal constitutional rights. Accordingly, Officer

Deramus is entitled to qualified immunity on those claims under the first component of the

qualified immunity analysis.

3 Under Oklahoma law, once a person has been detained pursuant to Okla. Stat. tit. 43A, §

5-207, the person “shall be subject to an initial assessment at the appropriate facility by a licensed

mental health professional within twelve (12) hours of being placed in protective custody for the

purpose of determining whether emergency detention . . . is warranted.” Id., § 5-208. According

to plaintiff’s own allegations, he was detained by mental health professionals upon their

determinations, following his refusal to cooperate.

b. Clearly Established Law

A constitutional right is clearly established where a Tenth Circuit or Supreme Court

precedent is on point such that the unlawfulness of the questioned conduct was apparent to the

officer at the time of the challenged conduct. See Apodaca v. Raemisch, 864 F.3d 1071, 1076

(10th Cir. 2017). “Because the focus is on whether the officer had fair notice that her conduct was

unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”

Kisela v. Hughes, __ U.S. __, 138 S. Ct. 1148, 1152 (2018) (quoting Brosseau v. Haugen, 543

U.S. 194, 198 (2004)). The courts are “not to define clearly established law at a high level of

generality,” although “a case directly on point” is not required so long as “existing precedent [has]

placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,

741-42 (2011); see also Mullenix v. Luna, __ U.S. __, 136 S. Ct. 305, 308 (2015) (quoting al-Kidd,

563 U.S. at 741)); White v. Pauly, __ U.S. __, 137 S. Ct. 548, 551 (2017); Kisela, 138 S. Ct. at

1152. “[A] right is clearly established when a precedent involves ‘materially similar conduct’ or

applies with ‘obvious clarity’ to the conduct at issue.” Id. (quoting Estate of Reat v. Rodriguez,

824 F.3d 960, 964-65 (10th Cir. 2016)). Thus, officers are entitled to qualified immunity “absent

a precedent that ‘squarely governs’ the specific facts at issue.” Kisela, 138 S. Ct. at 1153.

Even if the plaintiff had alleged facts sufficient to state a plausible claim that Officer

Deramus violated a constitutional right, plaintiff has not met his burden to provide authority that

such a right was clearly established in the law on May 9, 2018 when Deramus signed the Statement

for Protective Custody and transported plaintiff to TCBH. Indeed, plaintiff repeatedly

acknowledges in his response that there is a “Lack of Case Law,” “there is no case law to cover

the circumstances presented by the Plaintiff’s case,” and “[t]here is no case law.” (Doc. 30 at 18-

19). Elsewhere in his brief, he cites general principles under Brady v. Maryland, 373 U.S. 83

(1963), for the alleged failure of the defendants to produce exculpatory evidence to him. However,

plaintiff has not set forth facts that would indicate that Brady is applicable to his situation, and he

has not identified any Supreme Court or Tenth Circuit case that would have provided clear notice

to Officer Deramus that failing to provide the plaintiff the peace officer statement would somehow

be a violation of his federal rights. Officer Deramus is accordingly entitled to qualified immunity

on both the first and second prongs of the analysis.

B. State Law Claims

Officer Deramus also moves to dismiss any state law claims asserted by the plaintiff. (Doc.

29 at 10-11). The plaintiff did not respond regarding the state law claims, such that it is unclear

whether he intended to pursue them against Officer Deramus. (See Doc. 30). The plaintiff’s

Amended Complaint references Deramus in his Sixth Cause of Action under the Oklahoma

Governmental Tort Claims Act (OGTCA), for an alleged “assault by officers.” (Doc. 4 at 20). As

the basis for that claim, he asserts that Deramus transported plaintiff to a mental facility “where it

was customary to immediately control patients with psychiatric drugs.” (Id.).

The plaintiff has not alleged any facts (or law) that would render Officer Deramus

responsible for the mental health officials’ administration of psychiatric drugs to the plaintiff,

which is the basis of his Sixth Cause of Action. Under state law, after Officer Deramus took him

to TCBH, it was the duty of mental health officials to determine whether to detain the plaintiff and

how to treat him. See Okla. Stat. tit. 43A, §§ 5-207(E), 5-208. Accordingly, plaintiff has failed to

state any plausible state claim against Officer Deramus.

IV. Claims Against the City of Tulsa

A. Section 1983 Claims

Plaintiff’s Second Cause of Action asserts that the City violated the plaintiff’s civil rights

by “maintain[ing] and permit[ing] an official [sic] and custom of permitting the occurrence of the

types of wrongs set forth herein above and hereafter.” (Doc. 4 at 16). He further alleges that the

City had a “policy of allowing arrests without probable cause and failing to obtain pertinent

exculpatory and inculpatory evidence,” and “deliberate indifference in the training of it’s [sic]

officers in making lawful detentions.” (Id.). In addition, the plaintiff avers that “[t]hese policies

and customs also include express and/or tacit encouragement and acceptance of detentions / arrests

without probable cause, the ratification of police misconduct, and the failure to conduct adequate

investigation of police misconduct, such that future violations do not occur.” (Id.).

A municipality may not be held liable under § 1983 solely because its employee inflicted

injury; municipal liability cannot be found by application of the theory of respondeat superior.

Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). “[L]ocal

governments are responsible only for ‘their own illegal acts.’” Connick v. Thompson, 563 U.S. 51,

60 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). To hold a

municipality liable under § 1983, a plaintiff must prove (1) the existence of a municipal policy or

custom by which the plaintiff was denied a constitutional right and (2) that the policy or custom

was the moving force behind the constitutional deprivation (i.e. “whether there is a direct causal

link between [the] policy or custom and the alleged constitutional deprivation”). See City of

Canton v. Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. at 694 (citations omitted). The

requirement of a policy or custom distinguishes the “acts of the municipality from acts of

employees of the municipality, and thereby make[s] clear that municipal liability is limited to

action for which the municipality is actually responsible.” Pembaur, 475 U.S. at 479.

With respect to plaintiff’s failure to train theory, the Supreme Court has reiterated that “[a]

municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on

a failure to train.” Connick, 563 U.S. at 61. A municipality may only be liable where “the need

for more or different training is so obvious, and the inadequacy [in training] so likely to result in

the violation of constitutional rights, that the policymakers of the [municipality] can reasonably be

said to have been deliberately indifferent to the need.” Canton, 489 U.S. at 390. The Supreme

Court has thus recognized “limited circumstances in which an allegation of a ‘failure to train’ can

be the basis for [§ 1983 municipal] liability.” Canton, 489 U.S. at 387. In Connick, the Supreme

Court further elaborated on the deliberate indifference required to impose municipal liability under

§ 1983 for a failure to train:

“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious consequence of his action.”

Thus, when city policymakers are on actual or constructive notice that a particular

omission in their training program causes city employees to violate citizens’

constitutional rights, the city may be deemed deliberately indifferent if the

policymakers choose to retain that program. The city’s “policy of inaction” in light

of notice that its program will cause constitutional violations “is the functional

equivalent of a decision by the city itself to violate the Constitution.” A less

stringent standard of fault for a failure-to-train claim “would result in de facto

respondeat superior liability on municipalities. . . .”

A pattern of similar constitutional violations by untrained employees is

“ordinarily necessary” to demonstrate deliberate indifference for purposes of

failure to train. Policymakers’ “continued adherence to an approach that they know

or should know has failed to prevent tortious conduct by employees may establish

the conscious disregard for the consequences of their action – the ‘deliberate

indifference’- necessary to trigger municipal liability.” Without notice in a

particular respect, decision-makers can hardly be said to have deliberately chosen

a training program that will cause violations of constitutional rights.

563 U.S. at 61-62 (internal citations and quotations omitted).

Despite multiple opportunities to do so, the plaintiff has not alleged facts that state any

plausible § 1983 claim against the City of Tulsa. First, the allegations of the Amended Complaint

do not state a plausible claim for a violation of the plaintiff’s constitutional rights by any City actor

that would support any maintenance of a claim against the City under Monell. See, e.g., Hinton v.

City of Elwood, Kan., 997 F.2d 774, (10th Cir. 1993) (“A municipality may not be held liable

where there was no underlying constitutional violation by any of its officers”); Camuglia v. City

of Albuquerque, 448 F.3d 1214, (10th Cir. 2006) (determining City was also entitled to summary

judgment where the court determined that there had been no underlying constitutional violation).

Second, the plaintiff has not identified any specific policy or custom that was the moving

force behind any constitutional violation. Conclusory allegations of a “policy of allowing arrests

without probable cause and failing to obtain pertinent exculpatory and inculpatory evidence,” and

“deliberate indifference in the training of it’s [sic] officers in making lawful detentions” are devoid

of any facts that would plausibly state a claim against the City under Monell or Connick, because

the plaintiff has not identified a specific training deficiency or a pattern of constitutional violations

by untrained City employees in similar situations. See Connick, 563 U.S. at 61-62.

In response to the City’s dismissal motion, the plaintiff does not address the City’s specific

arguments, but instead asserts that “[t]his is not a traditional ‘in capacity’ case” because the “City

of Tulsa is on trial for their supervisory role over Officer Deramus, but also is on trial for their

own felonious conduct.” (Doc. 13 at 1). Plaintiff references a number of additional vague and

conclusory “policies” allegedly maintained by the City, including: (1) a “public policy that Peace

Officer’s [sic] cannot manufacture evidence and the City of Tulsa has the nerve to come into a

Federal Courtroom and argue there are exceptions” (id. at 4); (2) “a consistent policy or custom of

corruption” (id. at 8); (3) a policy of “accepting and condoning the egregious conduct of Officer

Deramus . . . as clearly reflected in their Motion to Dismiss” (id. at 13); (4) an unspecified “morally

bankrupt policy,” and (5) “a policy allowing the manufacture of evidence.” (id. at 14). Those

allegations are, again, devoid of any factual information about a particular policy or custom, any

pattern of constitutional violations by officers in similar situations, or any specific training

deficiency. Even if included in the Amended Complaint, those additional allegations from

plaintiff’s response would still not state a claim against the City, as they amount to nothing more

than hyperbolic characterizations rather than factual averments of any specific policy or custom.

Third, plaintiff has merely recited elements, rather than alleging particular facts that would

plausibly show requisite elements are met. One example is the plaintiff’s allegation that the City

“maintained and permitted an official [sic] and custom of permitting the occurrence of the types

of wrongs set forth herein above and hereafter,” which merely asserts that the City had an

unspecified custom. With respect to causation, plaintiff similarly alleges in conclusory fashion

that he is “informed and believes . . . that the customs and policies were the moving force behind

the violations of Plaintiff’s rights.” (Doc. 4 at 16). Such “labels and conclusions” and “formulaic

recitation of the elements of a cause of action” are insufficient to state a cause of action. See

Twombly, 550 U.S. at 555. Plaintiff’s Amended Complaint does not contain sufficient factual

allegations “to raise a right to relief above the speculative level” on his § 1983 claims against the

City of Tulsa. Id. at 555-56, 570.

B. State Law Claims

The City moves to dismiss plaintiff’s state law claims. The City first notes that the

plaintiff’s allegations that Officer Deramus’s actions were criminal, intentional and malicious, and

amounted to fabrication and manufacture of evidence (see Doc. 4 at 4, 15, 18), do not plausibly

state a basis for any tort claim against the City under the OGTCA, because such allegations clearly

indicate that Officer Deramus was not acting in the scope of his employment. The OGTCA

precludes tort actions against “an employee of the state or political subdivision acting within the

scope of his employment.” Okla. Stat. tit. 51, § 163(C); see also id., §§ 152.1(A), (B), 153(A),

(B). “‘Scope of employment’ means performance by an employee acting in good faith within the

duties of the employee’s office or employment or of tasks lawfully assigned by a competent

authority. . . .” Okla. Stat. tit. 51, § 152(12).

Oklahoma courts have determined that claims with malice as a necessary element – such

as malicious prosecution claims – may not be maintained against a municipality under the OGTCA

because the malice element necessarily negates the good faith necessary to showing an employee

acted in the scope of employment. See, e.g., Douglas v. Miller, 864 F. Supp. 2d 1205, 1221 (W.D.

Okla. 2012) (quoting Parker v. City of Midwest City, 850 P.2d 1065, 1067 (Okla. 1993)); see also

Tuffy’s, Inc. v. City of Okla. City, 212 P.3d 1158, 1165-66 (Okla. 2009).4

The City also argues that the plaintiff has failed to state a plausible claim for negligence

under the factual allegations of the Amended Complaint. The Court agrees. As noted, supra, the

plaintiff only challenges one sentence in Officer Deramus’s statement. The balance of the

Statement referenced numerous other threats that supported probable cause or a reasonable belief

that the plaintiff was in need of treatment, in accordance with Oklahoma law.

The plaintiff’s assertions that his rights were violated during the 34 days of detention over

two separate time-frames do not state any plausible claim against the City of Tulsa, because mental

4 Plaintiff’s malicious prosecution claim fails in any event, because his factual allegations

do not indicate that he was ever prosecuted, that there was a lack of probable cause, or that he was

exonerated or that any prosecution was terminated in his favor. See Parker, 850 P.2d at 1067 (The

elements of a malicious prosecution action are “(1) the bringing of the original action by the

defendant; (2) its successful termination in favor of the plaintiff; (3) want of probable cause to

bring the action; (4) malice; and (5) damages.”); Erikson, 263 F.3d at 1154-55.

health officials at TCBH and Laureate were responsible for determining whether to detain and how

to treat the plaintiff under Oklahoma law. See Okla. Stat. tit. 43A, §§ 5-207, 5-208. Plaintiff has

also not alleged that either Officer Deramus or the City had any duty or responsibility with respect

to the prescription of any psychiatric drug.

In his Fifth Cause of Action, the plaintiff alleges that he “was forced to violate his own

rights, every time he spoke,” and he complains that the City of Tulsa did not respond to his tort

claim and left it open. (See Doc. 4 at 20). As a matter of law, that allegation does not state any

cognizable claim under Oklahoma law, which expressly provides that “a claim is deemed denied

if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days.”

Okla. Stat. tit. 51, § 157(A).

In his response brief, rather than respond to the City’s specific arguments regarding his

state law claims, the plaintiff asserts that “this is not a typical case and the City is not being sued

as the entity responsible for Officer Deramus, but is being sued because every time the Plaintiff

wrote the City, the City made a conscious decision to cover-up the innocence of the Plaintiff and

hide the guilt of Officer Deramus.” (Doc. 13 at 13). Plaintiff offers no legal authority that would

recognize any such claim under Oklahoma law. (See id.).

The plaintiff has not alleged facts that state any plausible claim against the City of Tulsa

under Oklahoma law.

V. Conclusion

The defendants’ dismissal motions (Doc. 9, 29) are granted. Officer Deramus is entitled

to qualified immunity on the plaintiff’s § 1983 claims against him, and those claims are thus

dismissed with prejudice.

Despite plaintiff’s numerous filings, he has not articulated any additional facts that would

state a plausible claim under § 1983 or state law. Instead, he has merely lodged more inflammatory

and conclusory allegations, lacking any factual content. (See, e.g., Doc. 13 at 1-2 [Alleging that

the City engaged in “felonious conduct,” “a conspiratorial felony,” “a cover up,” and is “the

epitome of a corrupt municipality that encourages false evidence violations, because the executives

of the municipality don’t respect or follow the law”]; see also id. at 2 [Alleging that City officials

are “perpetrators” who should be in “prison” and “Mayor Bynum is up for prison,” and asking this

Court to “send a wake up call to Tulsa, before the entire City is booked into jail”); id. at 3

[Asserting that arguments in the City’s dismissal motion – which cites Oklahoma law regarding

protective custody – are “slanderous” and constitute “an additional deceptive felony” by the City’s

attorneys]; id. at 5 [Arguing that “Officer Deramus is a liar, felon and corrupt cop of the lowest

caliber and knew his employer was just as corrupt as him”]).5 Conclusory allegations that City

officials should be in prison for felonious conduct do not state a claim.

In short, despite his numerous filings, plaintiff has not alleged sufficient facts to state any

cognizable, plausible claim against the defendants. The Court thus concludes that it would be futile

to permit another amendment by plaintiff. As a result, the plaintiff’s claims are dismissed without

leave to amend. A judgment of dismissal will be entered forthwith.

In light of the dismissal of the plaintiff’s claims against the defendants, the plaintiff’s

motions to reduce relief requested (Doc. 28) and for summary judgment (Doc. 31) are moot.

SO ORDERED this 9th day of August, 2019.

5 Mayor Bynum is not named as a party in this case. He has been named in Case No. 19-

CV-158-TCK-JFJ, which is pending before Judge Kern.