Mooney v. Regalado

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

EARL MOONEY, MATTHEW LAWSON, )

and TERRAN MARROW, )

)

Plaintiffs, )

)

Case No. 19-CV-462-TCK-CDL

v. )

)

VIC REGALADO, in his official )

capacity as SHERIFF OF TULSA COUNTY, )

)

Defendant. )

OPINION AND ORDER

Before the Court is the Motion to Dismiss of the defendant, Vic Regalado (“Regalado” or

“Sheriff Regalado”) (Doc. 7), Plaintiff’s Response to said motion (Doc. 11), and Sheriff

Regalado’s Reply (Doc. 16). Initially, Plaintiff brought two causes of action in their Complaint

(Doc. 2). The first was based upon 42 U.S.C. § 1983, for the alleged violation of “Plaintiff's Eighth

and/or Fourteenth Amendment Rights.” Complaint at pp. 4-5, ¶¶ 21-27 (Doc. 2). Plaintiff’s second

cause of action was based upon an abrogated state constitution-based theory which Plaintiffs now

concede is no longer viable under Oklahoma law.

I. Allegations of the Complaint

Plaintiffs Earl Mooney (“Mr. Mooney”), Matthew Lawson (“Mr. Lawson”) and Terran

Marrow (“Mr. Marrow”) were inmates at the Tulsa County Jail (“Jail”) in 2017. All three of these

men were subjected to various acts of sexual misconduct committed by Defendant Rickardo

Orlando Williams (“Officer Williams” or “Williams”) in May of 2017. Plaintiffs claim Williams

“repeatedly humiliated Plaintiffs by forcibly engaging in unwanted sexual acts with them.” These

acts included “simulating sexual acts while standing behind Mr. Mooney, touching his chest, and

touching his buttocks in a sexual manner[]”; “physically touching Mr. Lawson in a sexual manner

on a number of occasions[]”; and “physically touching Mr. Marrow in a sexual manner on a

number of occasions.” See Complaint at ¶¶ 9-14. It is undisputed that all of these acts were

nonconsensual. Id.1

Defendants’ claim that Williams’ conduct resulted only in de minimis harm. However,

Plaintiffs contend Williams repeatedly sexually harassed and abused Plaintiffs in a manner that is

certainly “inconsistent with contemporary standards of decency.” See Estelle v. Gamble, 97 S.Ct.

285, 290-292, 429 U.S. 97, 103 (1976). In 1958, the United States Supreme Court found “[t]he

[Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the

progress of a maturing society.” Trop v. Dulles, 78 S.Ct. 590, 598, 356 U.S. 86, 100–01 (1958)

(emphasis added).2

II. Applicable Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he mere

metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded

1 Williams plead guilty on January 29, 2019 to two counts of sexual battery in Tulsa County

District Court and received a four-year suspended sentence. See State of Oklahoma v. Williams,

Case No. CF-2017-3188 (Tulsa County District Court 2017). Williams was required to register as

a sex offender. Plaintiff’s Response Br. at 2 (Doc. 11). “[W]hen Williams was first questioned

about his sexual misconduct, he denied the allegations, demonstrating his culpable state of mind.

Only when presented with conclusive video evidence did Williams decide to tell the truth.” Id.

2 Plaintiffs’ Complaint does not identify whether Plaintiffs were pretrial detainees or were being

held post-conviction. This distinction matters as to whether their Section 1983 claims arise under

the Fourteenth or Eight Amendment.

claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a

reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v.

Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).

The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court in

Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be

true.” Robbins v. Okla. ex rel. Okla. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).

Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it

innocent, then the plaintiffs have not nudged their claims across the line from conceivable to

plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to

be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement

of plausibility serves not only to weed out claims that do not (in the absence of additional

allegations) have a reasonable prospect of success, but also to inform the defendants of the actual

grounds of the claim against them.” Id. at 1248.

III. Analysis

On November 26, 2018, Plaintiffs filed their Petition in Tulsa County District Court, and

Defendants subsequently filed their Notice of Removal. See Petition; Notice of Removal (Doc. 2).

Plaintiff’s federal claims are brought against Sheriff Regalado in his official capacity. A claim

against a state actor in his official capacity, such as Sheriff Regalado, “is essentially another way

of pleading an action against the county or municipality” he represents and is considered under the

standard applicable to § 1983 claims against municipalities or counties. 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.”).

Typically, courts will not hold a municipality liable without proof of an “underlying constitutional

violation by [one] of its officers.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317–18 (10th Cir.

2002). The Court finds the Complaint includes ample and plausible allegations that Williams, a

former Tulsa County Sheriff’s Office (“TCSO”) detention officer, violated Plaintiffs’ Eighth

Amendment rights.

The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. “Sexual abuse of

an inmate by an officer violates the Eighth Amendment.” Graham v. Sheriff of Logan County, 741

F.3d 1118 (10th Cir. 2013). See also, Giron v. Corrs. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.

1999). (“Like the rape of an inmate by another inmate, sexual abuse of a prisoner by a corrections

officer has no legitimate penological purpose, and is ‘simply not part of the penalty that criminal

offenders pay for their offenses against society.’”) (internal citation omitted) (emphasis added).

A. Plaintiffs Have Satisfied the Subjective Prong of the Excessive Force Analysis

“Sexual abuse of a prisoner by a guard is generally analyzed as an excessive force claim.”

Graham, 741 F.3d at 1123. An excessive force claim typically involves two prongs: “(1) an

objective prong that asks ‘if the alleged wrongdoing was objectively harmful enough to establish

a constitutional violation,’ and (2) a subjective prong under which the plaintiff must show that ‘the

officials act[ed] with a sufficiently culpable state of mind.’” Giron, 191 F.3d at 1289 (internal

citations and quotation marks omitted). “The subjective prong turns on whether the officer acted

maliciously and sadistically.” Graham, 741 F.3d at 1123.

Further, “[w]here no legitimate penological purpose can be inferred from a prison

employee’s alleged conduct, including but not limited to sexual abuse or rape, the conduct itself

constitutes sufficient evidence that force was used ‘maliciously and sadistically for the very

purpose of causing harm.’” Giron, 191 F.3d at 1290 (quoting Whitley v. Albers, 106 S.Ct. 1078,

1081, 45 U.S. 312, 313 (1986)). Indeed, “[c]ourts have repeatedly recognized that because no

legitimate law enforcement or penological purpose can be inferred by the sexual abuse by a prison

official, the sufficiently culpable state of mind is present to violate the prisoner’s constitutional

rights.” Smith v. Cochran, 216 F.Supp.2d 1286, 1292 (N.D. Okla. 2001) (emphasis added). See

also, Jordan v. Gardner et. al, 986 F.2d 1521, 1524-31 (9th Cir. 1993); Boddie v. Schnieder, 105

F.3d 857, 861 (2nd Cir. 1997). Williams’ conduct, as plead in Plaintiffs’ Complaint, constitutes

sexual abuse with no penological purpose. Therefore, the subjective prong has been satisfied. See

Complaint at ¶¶ 9-14, 22, 28.

B. Plaintiffs’ Have Satisfied the Objective Prong of the Excessive Force Analysis

For the objective prong of the excessive force analysis in the context of sexual abuse of an

inmate, “it does not require that a prisoner show a significant injury to pursue an Eighth

Amendment claim. Graham, 741 F.3d at 1123 (internal quotation marks omitted). Indeed, the

Supreme Court has held that “the use of excessive physical force against a prisoner may constitute

cruel and unusual punishment when the inmate does not suffer serious injury.” Hudson v.

McMillian, 112 S.Ct. 995, 997, 503 U.S. 1, 4 (1992). “[T]he core judicial inquiry is...whether force

was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically

to cause harm.” Id. at 999, 503 U.S. at 7. The respondents in Hudson attempted to argue for a

“significant injury” requirement regarding the objective component of an Eighth Amendment

analysis. Id. at 1000, 503 U.S. at 8. However, the Supreme Court rejected that argument, instead

stating that “[w]hat is necessary to show sufficient harm for purposes of the Cruel and Unusual

Punishments Clause depends upon the claim at issue...the Eighth Amendment’s prohibition of

cruel and unusual punishments draws its meaning from the evolving standards of decency that

mark the progress of a maturing society, and so admits of few absolute limitations.” Id. (internal

citations and quotation marks omitted) (emphasis added).

Plaintiffs allege Williams inappropriately, and without consent, physically touched all

three of them in a sexual manner several times, even simulating sexual acts while standing behind

Mr. Mooney on at least one occasion. See Complaint at ¶¶ 9-14. Plaintiffs further contend

“Williams’ conduct is especially troubling considering the increased risk of sexual assault that

inmates often face. Further, while society may have at one time – even in the very recent past –

discounted Plaintiffs’ claims as frivolous or cowardly – they are very serious allegations. And,

importantly, federal courts across the country are starting to expand the types of unwanted sexual

acts that constitute a constitutional violation.” Plaintiffs’ Resp. at 6 (Doc. 11).

On February 10, 2020, the Tenth Circuit Court of Appeals issued its Opinion in Ullery v.

Bradley, 949 F.3d 1282 (10t Cir. 2020). This case involved alleged staff-on-inmate sexual

misconduct, and the Ullery Court affirmed the denial of a defendant’s motion to dismiss based on

qualified immunity. The Ullery Opinion is relevant here for its elucidation of what constitutes an

Eighth Amendment violation in the context of sexual harassment/sexual assault in a correctional

setting:

In sum, persuasive out-of-circuit authority addressing the

constitutional right in question was not divided or otherwise unclear

following the Second Circuit’s decision in Crawford I. Defendant

violated clearly established Eighth Amendment law by: (1)

approaching Plaintiff from behind and forcibly pressing his genitals

into her buttocks while lasciviously moaning “mmmmmm” in her ear;

(2) purposefully and knowingly using physical force against Plaintiff

by touching her breasts; and (3) forcibly grabbing and fondling

Plaintiff’s crotch without her consent. Moreover, based on the

consensus of persuasive authority addressing the right in question, any

one of these three uses of force on its own—regardless of whether

Plaintiff’s allegations are viewed in isolation or as a pattern of

pervasive sexual abuse— violated clearly established law. Defendant

does not point to a single decision from this circuit or a published

opinion from one of our sister circuits—and we have found none—

shedding doubt on our conclusion today. Rather, the unanimity among

our sister circuits since Crawford I demonstrates the constitutional

question here is “beyond debate.” See Cummings, 913

F.3d at 1239.

Ullery, 949 F.3d at 1300.

Sheriff Regalado’s primary argument for dismissal is that Defendant Williams’ underlying

conduct was not “sufficiently serious enough to establish cognizable Eighth Amendment Claims.”

See Doc. #7 at 9. The Ullery Opinion provides support for Plaintiffs’ position that Sheriff

Regalado’s arguments lack merit. The Court finds Plaintiffs’ Complaint contains sufficient factual

allegations which "survive a motion to dismiss, …[and] contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

IV. Conclusion

Accordingly, based on the foregoing analysis Defendant’s Motion to Dismiss (Doc.7) is

denied.

IT IS SO ORDERED this 23rd day of March, 2021.

_________________________________________

TERENCE C. KERN

United States District Judge