Savage v. State of Oklahoma, The

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARQUICE DONNELL SAVAGE, )

)

Plaintiff, )

)

v. ) Case No. 23-CV-0129-GKF-SH

)

THE STATE OF OKLAHOMA, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiff Marquice Donnell Savage, a self-represented pretrial detainee1 appearing in forma

pauperis, seeks relief under 42 U.S.C. §§ 1983 and 1985, through a Complaint for Violation of

Civil Rights filed March 31, 2023 (“Complaint”) (Dkt. 1) against four defendants: the State of

Oklahoma, Tulsa County Assistant District Attorney Alison Nutt, the City of Tulsa, and Tulsa

Police Detective Lacy Lansdown.2 Before the Court are five motions: a Motion to Dismiss

Plaintiff’s Complaint and Brief in Support filed by Defendant Lacy Lansdown (“Lansdown

Motion”) (Dkt. 29); a Motion to Dismiss with Brief in Support filed by Defendants the State of

Oklahoma and Alison Nutt (“State Motion”) (Dkt. 30); Savage’s First Motion to Amend (Dkt. 31);

1 Because Savage appears without counsel, the Court liberally construes his filings. Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For consistency, the Court’s citations to all

documents in the record refer to the CM/ECF header pagination.

2 It is not entirely clear from the Complaint whether Savage intends to separately sue the

State of Oklahoma and the City of Tulsa or whether he identifies the State and the City as

defendants only to show that he is asserting official capacity claims against Lansdown and Nutt.

Dkt. 1, at 1-2; see Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits . . .

‘generally represent only another way of pleading an action against an entity of which an officer

is an agent.’” (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55

(1978))). However, because Savage included all four defendants in the caption of the Complaint,

the Court construes the Complaint as naming all four as defendants.

Savage’s Second Motion to Amend (Dkt. 38); and Savage’s Third Motion to Amend (Dkt. 45).

For the following reasons, the Court grants the State Motion; dismisses the Complaint as to all

claims raised therein; denies as moot the Lansdown Motion; and denies all three Motions to

Amend.

I. Complaint

Liberally construing the Complaint, the Court discerns the following factual allegations

and claims.3 On August 13, 2019, the State of Oklahoma filed an Information, in Tulsa County

District Court Case No. CF-2019-3801, charging Savage with one count of Assault and Battery,

Domestic, with a Deadly Weapon, in violation of Okla. Stat. tit. 21, § 644(D)(2). Dkt. 1, at 8; Dkt.

11, at 5. That same day, a state judicial officer issued a warrant for Savage’s arrest. Dkt. 11, at

5.4 Savage was arrested two or three days later, entered a plea of not guilty, and a state judicial

officer remanded him to custody. Id. A preliminary hearing was held on October 4, 2019, October

3 Savage twice supplemented the Complaint with supporting exhibits. The first exhibit is

a copy of the docket sheet from Tulsa County District Court Case No. CF-2019-3801. Dkt. 11.

Lansdown attaches a copy of the same docket sheet with her dismissal motion. Dkt. 29-2. Even

if neither party attached the docket sheet, this Court could take judicial notice of this public record

without converting the dismissal motion into a motion for summary judgment. Gee v. Pacheco,

627 F.3d 1178, 1186-87 (10th Cir. 2010). The Court therefore will consider the docket sheet in

evaluating the sufficiency of the Complaint. The second exhibit is a copy of what appears to be a

historical document titled “(1724) Louisiana’s Code Noir,” and that is also described as a “slave

code.” Dkt. 33. Savage does not explain how this exhibit is relevant to any claims he attempts to

identify in the Complaint, and the Court declines to consider it in evaluating the sufficiency of the

Complaint.

4 Lansdown attached to her dismissal motion a copy of the probable cause affidavit that

Lansdown submitted to obtain a warrant for Savage’s arrest. Dkt. 29-1. However, Savage does

not refer to the probable cause affidavit in the Complaint and it is not apparent from the Complaint

that the probable cause affidavit is central to any claims he raises, or attempts to raise, in the

Complaint. Rather, Savage identifies his claims as arising from the actions and omissions of Nutt

and Lansdown that allegedly occurred at his trial on October 14, 2021. Dkt. 1, generally. The

Court therefore will not consider any facts from the probable cause affidavit to evaluate the

sufficiency of the Complaint. Gee, 627 F.3d at 1186.

9, 2019, and November 8, 2019. Id. at 6-7. After hearing from three witnesses, a state judicial

officer found probable cause that Savage committed the crime charged and bound him over for a

jury trial. Id. at 7. The State amended the charge on February 26, 2020, to allege the use of a

dangerous, not deadly, weapon. Id. at 10. Savage was “held in jail almost 2 years” following his

arrest, and his case proceeded to trial in October 2021. Dkt. 1, at 4-5, 8, 10; Dkt. 11, at 15-16.

Sometime before Savage’s trial, one of his attorneys, Courtney Rainbolt, gave Assistant District

Attorney Alison Nutt a copy of the victim’s written statement wherein the victim averred that

Savage “is innocent.” Dkt. 1, at 6-7. Nutt ignored the victim’s statement and continued to

prosecute Savage. Id.

On October 14, 2021, Detective Lacy Lansdown “gave false testimony at trial.” Id. at 5,

7-8, 10. Lansdown and Nutt “both claimed that [Savage] struck the victim . . . with some kind of

blunt force object on the head and hand.” Id. at 5. “The State’s exhibits showed pictures of the

victim’s injuries at trial.” Id. “The State showed the jury only the exhibits that showed the victim’s

head and hand, but the state [prosecutor,] Alison Nutt[,] hid the exhibits that showed the rest of

the victim’s injuries to the victim’s legs, knees, and back which was consistent with a fall.” Id. at

5, 7-8. Savage’s attorney, Kyle Killam, “redirected and showed the jury the rest of the exhibits

which showed the victim’s legs, back, and knees.” Id. The jury found Savage “not guilty.” Id. at

5; Dkt. 11, at 16.

Based on these factual allegations, Savage claims that Lansdown and Nutt, acting in their

individual and official capacities, (1) conspired to interfere with his civil rights and deprive him of

equal protection of the law, in violation of 42 U.S.C. § 1985(3); and (2) violated his Fourteenth

Amendment rights to due process and equal protection of the laws, a constitutional violation that

can be remedied under 42 U.S.C. § 1983. Dkt. 1, at 3, 5-9. Savage describes his resulting injuries

as follows: “I am severely traumatized emotionally and mentally[.] I was strip searched, assaulted

by Detention officers[.] I had to be placed on strong pain meds over 6 months[.] I lost my house

I was evicted from my apartment I am homeless behind this.” Id. at 10. Savage seeks more than

one hundred million dollars in damages. Id.; Dkt. 24, at 1.

II. Motions to Dismiss

Defendants Lansdown, Nutt, and the State of Oklahoma move to dismiss the Complaint,

under Federal Rule of Civil Procedure 12(b)(1), for lack of jurisdiction, and under Rule 12(b)(6),

for failure to state a claim on which relief may be granted. Dkts. 29, 30.

A. Legal principles

Rule 12(b)(1) permits a party to seek dismissal on grounds that the district court lacks

subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The party seeking dismissal may “mount[]

either a facial or factual attack.” Baker v. USD 229 Blue Valley, 979 F.3d 866, 872 (10th Cir.

2020). “A facial attack assumes the allegations in the complaint are true and argues they fail to

establish jurisdiction.” Id. “A factual attack goes beyond the allegations in the complaint and

adduces evidence to contest jurisdiction.” Id. “When a defendant brings a factual attack, a district

court has ‘wide discretion to allow affidavits, other documents, and a limited evidentiary hearing

to resolve disputed jurisdictional facts.’” Id. (quoting Stuart v. Colo. Interstate Gas Co., 271 F.3d

1221, 1225 (10th Cir. 2001)).

Rule 12(b)(6) permits a party to seek dismissal on grounds that the facts alleged in the

complaint “fail[] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To

withstand a motion seeking dismissal under Rule 12(b)(6), 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). “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). But “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements” are not sufficient to plead a facially plausible

claim. Id. In evaluating the sufficiency of a complaint, the court must “take the well-pleaded

factual allegations in the complaint as true” and view the facts “in the light most favorable to” the

plaintiff. Papasan v. Allain, 478 U.S. 265, 283 (1986). But the court is “not bound to accept as

true a legal conclusion couched as a factual allegation.” Id. And the rule that requires courts to

liberally construe pleadings drafted by self-represented plaintiffs “does not relieve the plaintiff of

the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall,

935 F.2d at 1110. Instead, that rule requires a court to consider with leniency the plaintiff’s “failure

to cite legal authority,” “confusion of various legal theories,” “poor syntax and sentence

construction,” or “unfamiliarity with pleading requirements” and to determine whether “the court

can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail.” Id.5

5 Savage argues, in part, that this Court should deny both dismissal motions because this

Court previously determined that the Complaint was sufficient to state one or more cognizable

claims. Dkts. 34, 37, 39. The Court did make that determination when it screened the Complaint

pursuant to 28 U.S.C. § 1915A. Dkt. 9. But the fact that a complaint survives preliminary

screening under § 1915A neither precludes a defendant from seeking dismissal under Rule 12(b)(6)

nor requires a court to deny such a motion. See, e.g., Garewal v. Sliz, 611 F. App’x 926, 931 (10th

Cir. 2015) (“Simply put, the fact that a district court does not dismiss a complaint under § 1915A

does not mean that the complaint will necessarily withstand a defendant’s challenge to its

plausibility under Rule 12(b)(6).”); Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal.

2007) (reasoning that § 1915’s “sua sponte screening and dismissal procedure is cumulative of,

not a substitute for, any subsequent Rule 12(b)(6) motion that the defendant may choose to bring”).

The Court therefore rejects Savage’s argument that both dismissal motions should be summarily

denied.

B. State Motion6

As the Court reads the Complaint, and accepting Savage’s factual allegations as true,

Savage claims that the State and Nutt, acting in her official capacity as a prosecutor, violated his

Fourteenth Amendment rights to equal protection of the laws and due process by prosecuting him

for assault and battery because Nutt knew that the victim asserted before trial that Savage is

“innocent,” Nutt presented Lansdown’s false testimony at trial, and Nutt purposefully hid exhibits

from the jury that supported Savage’s position that the victim sustained injuries from a fall, thereby

entitling Savage to relief under § 1983. Savage also claims that Nutt conspired with Lansdown to

deprive him of equal protection of the law and that Nutt acted on that conspiracy at trial by hiding

certain exhibits from the jury and by presenting Lansdown’s false testimony, thereby entitling

Savage to relief under § 1985(3).

1. Sovereign immunity

The State and Nutt seek dismissal, in part, under Rule 12(b)(1), asserting that the Eleventh

Amendment provides them sovereign immunity from a suit seeking money damages and thus

6 The State Motion was filed on August 31, 2023. Dkt. 31. Savage’s response brief was

due September 21, 2023. LCvR7-1(e). Savage filed a response in opposition to the State Motion

on September 26, 2023. Dkt. 34. Because the record indicates that Savage delivered this response

to jail officials for mailing on September 12, 2023, the Court will apply the prison mailbox rule to

deems that response brief timely. Houston v. Lack, 487 U.S. 266, 275-76 (1988). Savage filed a

second “response” to the State Motion on October 4, 2023, and the Court directed the Clerk of

Court to docket that response as a “supplement” to the timely response. Dkt. 35. The Court will

thus consider Dkts. 34 and 35, collectively, as Savage’s response to the State Motion. However,

to the extent Savage asserts new claims and new factual allegations, or attempts to add new

defendants, in his response to the State Motion, the Court will not construe the response to the

State Motion as a potential request to amend the Complaint. Cf. Adams v. C3 Pipeline Constr.

Inc., 30 F.4th 943, 971 (10th Cir. 2021) (reiterating that this circuit’s precedents “interpret the

inclusion of new allegations in a response to a motion for summary judgment as a potential request

to amend the complaint” (quoting Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003)). As

previously stated, Savage has filed three separate Motions to Amend thus demonstrating his ability

to properly request leave to amend. The Court thus declines to exercise its discretion to interpret

Savage’s response to the State Motion as also seeking leave to amend the Complaint.

deprives this Court of subject-matter jurisdiction over all claims Savage asserts against the State

and against Nutt, in her official capacity.7 Dkt. 30, at 8-10.

The Court agrees. The Eleventh Amendment generally shields states from, and deprives a

federal court of jurisdiction over, claims in which private citizens seek money damages from a

sovereign state. See Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1080 (10th Cir. 2006);

Opala v. Watt, 454 F.3d 1154, 1157 (10th Cir. 2006) (recognizing that “[n]onconsenting States

may not be sued by private individuals in federal court” (citation and internal quotation marks

omitted)). A state’s sovereign immunity also shields state officers from claims in which private

citizens seek money damages from the state officers to the extent those officers are sued in their

official capacities. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (explaining

that, under the Eleventh Amendment, states are generally immune from suit and that a suit against

a state official “is no different from a suit against the State itself”); Chilcoat v. San Juan Cnty., 41

F.4th 1196, 1213 (10th Cir. 2022) (“Eleventh Amendment sovereign immunity bars suits for

money damages against states, state agencies, and state officers in their official capacities.”), cert.

denied sub nom. San Juan Cnty. v. Chilcoat, 143 S. Ct. 1748 (2023).

Exceptions to sovereign immunity exist, but none applies here. First, under Ex Parte

Young, 209 U.S. 123 (1908), an exception exists if the plaintiff is (1) suing a state official rather

than the state itself, (2) alleges an ongoing violation of federal law, and (3) seeks only prospective

relief. Chilcoat, 41 F.3d at 1214. This exception does not apply because Savage seeks money

damages for alleged past misconduct, not prospective relief for an alleged ongoing violation of

7 As an assistant district attorney, Nutt is an officer of the State. See Arnold v. McClain,

926 F.2d 963, 965-66 (10th Cir. 1991) (discussing Oklahoma law); Rozek v. Topolnicki, 865 F.2d

1154, 1158 (10th Cir. 1989) (holding that when a district attorney is a state officer, she is entitled

to Eleventh Amendment immunity).

federal law. Second, a state may waive its sovereign immunity and consent to be sued in federal

court. Will, 491 U.S. at 66; Opala, 454 F.3d at 1157; see also R.R. Co. v. Tennessee, 101 U.S.

337, 339 (1880) (“The principle is elementary that a State cannot be sued in its own courts without

its consent.”). This exception does not apply because Oklahoma has expressed its intent to

maintain sovereign immunity for itself, its political subdivisions, and its employees acting within

the scope of their employment, except as specifically set forth in the Oklahoma Governmental Tort

Claims Act. See 51 Okla. Stat. §§ 151 et seq.; Gradle v. Oklahoma, 203 F. App’x 179, 183 (10th

Cir. 2006). Third, Congress may override, or abrogate, a state’s sovereign immunity through clear

and express legislation. Will, 491 U.S. at 66; see Green v. Mansour, 474 U.S. 64, 68 (1985)

(“Because of the Eleventh Amendment, States may not be sued in federal court unless they consent

to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally

expresses its intent to abrogate the immunity.”). This exception does not apply because Congress

has not abrogated Oklahoma’s sovereign immunity as to claims asserted under either § 1983 or

§ 1985(3). See, e.g., Will, 491 U.S. at 67 (“We cannot conclude that § 1983 was intended to

disregard the well-established immunity of a State from being sued without its consent.”); Patillo

v. Larned State Hosp., 462 F. App’x 780, 783 (10th Cir. 2012) (affirming dismissal of claims

against state entities on the grounds that the state entities’ immunity “had not been abrogated or

waived in connection with §§ 1981, 1983, 1985, or 1986”); Carter v. Littlefield, No. 20-CV-0365-

JFH-JFJ, 2023 WL 3486970, at *3 (N.D. Okla. May 16, 2023) (unpublished) (citing Patillo for

proposition that Congress did not abrogate sovereign immunity as to claims asserted under §§

1981, 1983, or 1986 and dismissing plaintiff’s claims as barred by Eleventh Amendment).

Savage resists the conclusion that the Eleventh Amendment bars his claims against the

State and his official capacity claims against Nutt, arguing that the plain language of the Eleventh

Amendment does not immunize a state against a lawsuit filed by the state’s own citizens. Dkt. 34,

at 8-10. This is a fair point. The Eleventh Amendment states: “The Judicial power of the United

States shall not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI. Nonetheless, the United States Supreme Court “long ago

held that the Eleventh Amendment bars a citizen from bringing suit against the citizen’s own State

in federal court, even though the express terms of the Amendment refer only to suits by citizens

of another State.” Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987)

(citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)). The Court thus rejects Savage’s plain-language

argument.

Because the Eleventh Amendment deprives this Court of subject-matter jurisdiction over

all claims Savage asserts against the State and against Nutt, in her official capacity, the Court finds

and concludes that those claims shall be dismissed without prejudice.

2. Prosecutorial immunity

Next, the State and Nutt seek dismissal, in part, under Rule 12(b)(6), arguing that Savage

fails to state any claims upon which relief can be granted because Nutt is entitled to prosecutorial

immunity as to all claims Savage asserts against her in her individual capacity. Dkt. 30, at 4-7.

Again, the Court agrees.8 “Absolute prosecutorial immunity is a complete bar to a suit for

damages under 42 U.S.C. § 1983.” Chilcoat, 41 F.4th at 1208 (quoting Mink v. Suthers, 482 F.3d

1244, 1258 (10th Cir. 2007)); see also Kalina v. Fletcher, 522 U.S. 118, 131 (1997) (explaining

8 Because the Court agrees that prosecutorial immunity bars relief as to all individual

capacity claims Savage asserts against Nutt, the Court declines to address any remaining

arguments for dismissal under Rule 12(b)(6) that are included in the State Motion. See Dkt. 30, at

7-9.

that prosecutors are “fully protected by absolute immunity when performing the traditional

functions of an advocate”). Among other things, a prosecutor’s absolute immunity applies to the

prosecutor’s decisions on “whether to file an information, whether and when to prosecute, whether

to dismiss an indictment against particular defendants, which witnesses to call, and what other

evidence to present.” Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976); accord Nielander v.

Bd. of Cnty. Comm’rs of Cnty. of Republic, 582 F.3d 1155, 1164 (10th Cir. 2009) (“Prosecutors

are entitled to absolute immunity for their decisions to prosecute, . . . their evaluation of evidence,

their determination of whether probable cause exists, and their determination of what information

to show the court.”). And a prosecutor’s absolute immunity extends to “the culpable use by the

prosecution of misleading or false testimony,” Imbler, 424 U.S. at 414, “suppressions of evidence

favorable to [a criminal defendant],” id. at 414-15, and “conspiracies to present false testimony,”

Miller v. Glanz, 948 F.2d 1562, 1570 (10th Cir. 1991).

Even liberally construing Savage’s factual allegations to support his claims against Nutt,

in her individual capacity, those allegations focus solely on alleged actions Nutt performed in her

role as an advocate—namely, her decisions at Savage’s trial to present Lansdown’s allegedly false

testimony and to present certain exhibits without presenting other exhibits Savage characterizes as

favorable to him. For those actions, Nutt has absolute prosecutorial immunity. Imbler, 424 U.S.

at 414-15, 431 n.33; Nielander, 582 F.3d at 1164. Further, even accepting as true Savage’s

allegations that Nutt knowingly presented false testimony at trial and conspired with Lansdown to

present that false testimony, she has absolute prosecutorial immunity for these acts as well. Miller,

948 F.2d at 1570; see also Reasonover v. St. Louis Cnty., 447 F.3d 569, 580 (8th Cir. 2006)

(concluding that “a prosecutor is absolutely immune from a civil conspiracy charge when his

alleged participation in the conspiracy consists of otherwise immune acts”); Rowe v. City of Fort

Lauderdale, 279 F.3d 1271, 1282 (11th Cir. 2002) (“It would be cold comfort for a prosecutor to

know that he is absolutely immune from direct liability for actions taken as prosecutor, if those

same actions could be used to prove him liable on a conspiracy theory involving conduct for which

he was not immune.”).

Liberally construing Savage’s responses, the Court discerns two arguments against Nutt’s

assertion of prosecutorial immunity. Neither is persuasive. First, Savage appears to argue that

applying prosecutorial immunity to bar his claims against Nutt would effectively give Nutt, and

all other prosecutors, freedom to commit crimes including “stalking, intimidation, armed robbery,

. . . and even murder.” Dkt. 34, at 10. Second, Savage appears to argue that applying prosecutorial

immunity to bar his claims against Nutt is akin to “support[ing] Jim Crows Laws and the 1724

Louisiana’s Code of Noir.” Id. These arguments misunderstand the scope of prosecutorial

immunity, both in general and as applied to the facts of this case.

Because the factual allegations to support Savage’s individual capacity claims against Nutt

describe actions Nutt performed at his trial in her role as an advocate, Nutt has absolute

prosecutorial immunity. The Court thus finds and concludes that all claims asserted against Nutt,

in her individual capacity, shall be dismissed for failure to state a claim upon which relief can be

granted.

C. Lansdown Motion9

As the Court reads the Complaint, and accepting Savage’s factual allegations as true,

Savage claims that Lansdown violated his Fourteenth Amendment rights to equal protection of the

laws and due process by giving false testimony at his trial, thereby entitling Savage to relief under

§ 1983. Savage also claims that Lansdown conspired with Nutt to deprive him of equal protection

of the law and that Lansdown acted on that conspiracy at trial by giving false testimony at trial,

thereby entitling Savage to relief under § 1985(3).

Lansdown, however, construes the Complaint as raising “claims of False Arrest, Malicious

Prosecution, and Conspiracy,” and contends the Complaint should be dismissed, under Rule

12(b)(6), because the factual allegations are not sufficient to state any plausible claims. Dkt. 29,

at 4-8. Lansdown also asserts a qualified-immunity defense. Id. at 8-11. Savage primarily

responds to the Lansdown Motion by arguing that his factual allegations, accepted as true, are

sufficient to state plausible claims against Lansdown. Dkts. 37, 39, 41.

9 On October 10, 2023, Savage filed a Motion to Deny the City of Tulsa’s Motion to

Dismiss and Brief in Support (“Motion to Deny”) (Dkt. 37). The City of Tulsa, however, did not

file a dismissal motion. Having reviewed the Motion to Deny and other submissions from Savage

indicating he was not timely served a copy of the Lansdown Motion, see Dkts. 36, 39, 41, the

Court construes the Motion to Deny as an attempt to respond to the Lansdown Motion. The Court

therefore directs the Clerk of Court to modify the docket to reflect that the Motion to Deny (Dkt.

37) is a Response in Opposition to the Lansdown Motion (Dkt. 29). Savage also filed a “Letter,”

that this Court construed as a Supplement to his response to the Lansdown Motion (Dkt. 41). The

Court will thus consider Dkts. 37, 39, and 41, collectively, as Savage’s response in opposition to

the Lansdown Motion. Over one month after Savage received a copy of the Lansdown Motion,

and after he filed the three documents the Court construes as his response to that motion, Savage

filed a “Reply in Support of Motion to Deny the State of Oklahoma and Det. Lacy Lansdown’s

Motion to Dismiss” (Dkt. 42). Because this reply is an improper and untimely attempt to file a

supplemental brief, and the Court will not consider any arguments or allegations in this reply. See

LCvR7-1(f) (providing that a supplemental brief “may be filed only upon motion and leave of

Court”). Further, to the extent Savage includes new allegations, new claims, or new defendants in

his response to the Lansdown Motion, the Court declines to consider them as proposed

amendments to the Complaint for the reasons previously stated. See supra n. 6.

Before considering the parties’ arguments, the Court finds it necessary to consider two

matters that are not addressed in the Lansdown Motion. And the Court finds it appropriate to

address these matters, sua sponte, under its continuing obligation to screen a complaint filed by a

plaintiff appearing in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B) (providing, in in forma

pauperis proceedings, that “the court shall dismiss the case at any time if the court determines . . .

the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted;

or (iii) seeks monetary relief against a defendant who is immune from such relief”).

First, as previously discussed, Savage purports to sue Lansdown in her individual and

official capacities. To the extent Savage sues Lansdown in her official capacity, he effectively

asserts his claims against the City of Tulsa. Graham, 473 U.S. at 165-66. “Plaintiffs who seek to

impose liability on local governments under § 1983 must prove that action pursuant to official

municipal policy caused their injury.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citation and

internal quotation marks omitted). Having carefully and liberally construed the Complaint, the

Court finds no allegations plausibly suggesting that the City of Tulsa could be liable, under a theory

of municipal liability, for Lansdown’s alleged action of giving false testimony at Savage’s trial.

The Court therefore finds and concludes that any official capacity claims Savage asserts against

Lansdown and any claims he asserts against the City of Tulsa shall be dismissed, under

§ 1915(e)(2)(B)(ii), for failure to state a claim on which relief may be granted.

Second, to the extent Savage sues Lansdown in her individual capacity, the Court must

consider whether Lansdown has absolute immunity because each of Savage’s claims rest on his

allegation, accepted as true, that Lansdown “gave false testimony” at Savage’s jury trial. Dkt. 1,

at 5, 7, 10. Trial witnesses—including police—have absolute immunity with respect to claims

based on their testimony. Briscoe v. LaHue, 460 U.S. 325, 328, 343 (1983). As the Briscoe Court

explained, “Subjecting government officials, such as police officers, to damages liability under §

1983 for their testimony might undermine not only their contribution to the judicial process but

also the effective performance of their other public duties.” Id. at 343. And this absolute witness

immunity extends to claims that seek to impose liability based on factual allegations related to

preliminary discussions between witness and prosecutor, including claims of conspiracy to present

false testimony. See Rehberg v. Paulk, 566 U.S. 356, 367 (2012) (“[A] trial witness has absolute

immunity with respect to any claim based on the witness’ testimony.”). As to this point, the

Rehberg Court reasoned that the rule of absolute witness immunity

may not be circumvented by claiming that a [trial] witness conspired to present

false testimony or by using evidence of the witness’ testimony to support any other

§ 1983 claim concerning the initiation or maintenance of a prosecution. Were it

otherwise, “a criminal defendant turned civil plaintiff could simply reframe a claim

to attack the preparation instead of the absolutely immune actions themselves.”

Id. at 369 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 283 (1993) (Kennedy, J., concurring in

part and dissenting in part)).

Because Savage’s individual capacity claims against Lansdown each rest on his allegations

that Lansdown conspired to give false testimony at his trial and did, in fact, testify falsely at his

trial, Lansdown has absolute immunity as to all individual capacity claims Savage asserts against

her. The Court therefore finds and concludes that all individual capacity claims asserted against

Lansdown shall be dismissed, under § 1915(e)(2)(B)(iii), because they seek monetary relief

against a defendant who is immune from such relief.

Further, because the Court finds and concludes that all claims Savage asserts against

Lansdown must be dismissed under § 1915(e)(2)(B), the Court denies as moot the Lansdown

Motion.

III. Motions to Amend

Savage seeks leave to file an amended complaint through three Motions to Amend (Dkts.

31, 38, 45). Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely

given when justice so requires.” “Refusing leave to amend is generally only justified upon a

showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure

to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S.

W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). And “[w]here the party seeking amendment knows

or should have known of the facts upon which the proposed amendment is based but fails to include

them in the original complaint, the motion to amend is subject to denial.” Id. at 1366 (quoting Las

Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990)).

Further, “even though pro se parties generally should be given leave to amend, it is

appropriate to dismiss without allowing amendment ‘where it is obvious that the plaintiff cannot

prevail on the facts [s]he has alleged and it would be futile to give [her] an opportunity to amend.’”

Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014) (alterations in original)

(quoting Gee, 627 F.3d at 1195)). Finally, “[a] dismissal with prejudice is appropriate where a

complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.”

Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).

For the following reasons, the Court finds and concludes that Savage’s proposed

amendments would be futile, that all three Motions to Amend shall be denied, and that the

Complaint shall be dismissed, in part, with prejudice.

A. First Motion to Amend

In his First Motion to Amend, Savage seeks leave to add one new defendant: Tulsa County

District Attorney Stephen Kunzweiler. Dkt. 31. Savage asserts that Kunzweiler should “be held

responsible for his criminal and neglectful actions and in aiding and abetting the actions of his

appointed Assistant District Attorney Ms. Alison Nutt . . . and case agent Lacy Lansdown.” Id. at

1. Savage’s proposed amendments claim Kunzweiler, acting in his individual and official

capacity, deprived Savage of his Fourteenth Amendment rights to due process and equal protection

of the laws by “aiding and abetting” Nutt “in her heartless lack of respect for the interest of justice”

and by “willfully refusing to perform his required duties” under state law. Id. at 2, 9. Savage

further alleges Kunzweiler “educated, counseled, and coached” Nutt and Lansdown to present

false evidence, thereby depriving Savage of his Eighth Amendment right to be free from

discrimination and violating 42 U.S.C. § 1981(a) and § 1981(c); conspired with Nutt and

Lansdown to obstruct justice and deprive him of equal protection of the laws through the

presentation of false evidence by Nutt and Lansdown, thereby violating § 1985(2) and § 1985(3);

and conspired with Nutt to interfere with his civil rights and obstruct justice “by unlawfully

attempting to evade this civil action,” thereby violating § 1985(2). Id. at 3-7.

Savage provides no explanation for his failure to include Kunzweiler as a defendant, or to

include these new allegations and claims, in the Complaint. That alone is sufficient reason to deny

leave to amend. Frank, 3 F.3d at 1366. In addition, these proposed amendments would be futile

for four reasons. First, Savage provides nothing more than conclusory allegations to support his

claims against Kunzweiler. Iqbal, 556 U.S. at 678. Second, the Eleventh Amendment bars, and

thus deprives this Court of jurisdiction to adjudicate, any official capacity claims Savage asserts

against Kunzweiler. Chilcoat, 41 F.4th at 1213; Robbins, 438 F.3d at 1080. Third, to the extent

Savage asserts individual capacity claims against Kunzweiler for any alleged actions Kunzweiler

performed in his role as an advocate, Kunzweiler has absolute prosecutorial immunity. Chilcoat,

41 F.4th at 1208. Fourth, and finally, none of Savage’s conclusory allegations plausibly suggests

that Kunzweiler could be held liable, under a theory of supervisory liability, for any actions

Kunzweiler may have performed with respect to his alleged counseling, coaching, or educating of

Nutt or Lansdown, even if such actions could not be considered as within “the traditional functions

of an advocate.” Kalina, 522 U.S. at 131; see also Chilcoat, 41 F.4th at 1209 (“The public policy

considerations that support the protection of prosecutorial functions are not applicable to

investigative and administrative acts.”). Because the amendments Savage proposes in the First

Motion to Amend would be futile and he provides no reason for failing to identify Kunzweiler as

a defendant in the Complaint, the Court denies the First Motion to Amend.

B. Second Motion to Amend

In his Second Motion to Amend, Savage seeks leave to add two new defendants: Tulsa

Mayor G.T. Bynum, and Tulsa Police Chief Wendell Franklin. Dkt. 38. He asserts that adding

these defendants is necessary “to effectively sue the City of Tulsa in this civil action.” Id. at 1.

Savage further asserts that “the City of Tulsa is responsible for violations of [his] civil rights and

should be held responsible” and indicates he intends to sue Bynum and Franklin in both their

individual and official capacities. Id. at 1, 3. Highly summarized, Savage alleges that he mailed

letters to Bynum and Franklin advising them of Lansdown’s attempt to violate his civil rights at

trial, that he asked Franklin to investigate Lansdown, and that neither proposed new defendant

responded to his letters, investigated Lansdown, or prevented Lansdown from giving false

testimony at trial. Id. at 4-6. Based on these facts, Savage claims Bynum and Franklin violated

his Fourteenth Amendment right to due process; conspired with each other and with Lansdown “to

promote police corruption,” “obstruct justice,” and “deny [Savage] the equal protection of the law

because [he is] black African American”; and engaged in “discrimination.” Id. at 6-7. Savage

further alleges “there was false evidence collected in violation of the search warrant and 4th

Amendment,” and that both Bynum and Franklin violated their oath to uphold the Constitution “by

indulging in a conspiracy depriving [Savage] of Due process of the 14th Amendment,” in violation

of § 1985(3). Id. at 7-8. He also claims both proposed new defendants “obstructed justice” in

violation of § 1985(2). Id. at 8.

As previously discussed, Savage effectively sued the City of Tulsa by suing Lansdown in

her official capacity and the allegations in the Complaint fell far short of stating any municipal

liability claims against the City. Even granting Savage the benefit of liberal construction, it would

be futile to add these two proposed new defendants because none of Savage’s conclusory

allegations plausibly suggests that Bynum, Franklin, or the City of Tulsa could be liable, in any

capacity, for the violations of Savage’s federally protected rights that allegedly occurred at

Savage’s trial when Lansdown gave false testimony. Iqbal, 556 U.S. at 678. The Court therefore

denies the Second Motion to Amend.

C. Third Motion to Amend

In his Third Motion to Amend, Savage reasserts his request to add Kunzweiler as a

defendant and seeks leave to add more allegations against Kunzweiler—i.e., allegations that he

did not include in his First Motion to Amend. Specifically, Savage alleges in this motion that

Kunzweiler’s “actions are motivated by racial profiling,” and that Kunzweiler “conspired falsely

and maliciously together [with Nutt and Lansdown] to arrest [Savage] before [he] was arrested.”

Dkt. 45, at 1-2. As previously discussed, it would be futile to permit Savage to add Kunzweiler as

a defendant as most, or all, claims Savage attempts to assert against Kunzweiler would be barred

by sovereign or prosecutorial immunity. Savage’s additional conclusory allegations of “racial

profiling” and “conspiring” to arrest Savage do not persuade this Court that it should reconsider

its determination regarding the futility of adding Kunzweiler as a defendant. The Court thus denies

the Third Motion to Amend.

D. Conclusion

For the reasons stated, Savage’s proposed amendments amplify, rather than cure, the

pleading deficiencies in the Complaint. The Court thus concludes that it would be futile to grant

Savage leave to file an amended complaint. The Court further concludes that all claims asserted

in the Complaint, other than those claims over which this Court lacks jurisdiction, shall be

dismissed with prejudice. Brereton, 434 F.3d at 1219.

IT IS THEREFORE ORDERED that:

1. the Clerk of Court shall modify the docket to reflect that the Motion to Deny filed

October 10, 2023 (Dkt. 37) is a Response in Opposition to the Lansdown Motion (Dkt.

29);

2. the Motion to Dismiss with Brief in Support filed by Defendants the State of Oklahoma

and Alison Nutt (“State Motion”) (Dkt. 30) is granted;

3. the Complaint for Violation of Civil Rights filed March 31, 2023 (“Complaint”) (Dkt.

1) is dismissed without prejudice in part, under Federal Rule of Civil Procedure

12(b)(1), as to all claims asserted against the State of Oklahoma and all official capacity

claims asserted against Alison Nutt, for lack of jurisdiction;

4. the Complaint is dismissed with prejudice in part, under Federal Rule of Civil

Procedure 12(b)(6), as to all individual capacity claims asserted against Alison Nutt,

for failure to state a claim upon which relief can be granted;

5. the Complaint is dismissed with prejudice in part, under 28 U.S.C.

§ 1915(e)(2)(B)(ii), as to all claims asserted against the City of Tulsa and all official

capacity claims asserted against Lacy Lansdown, for failure to state a claim on which

relief may be granted;

6. the Complaint is dismissed with prejudice in part, under 28 U.S.C.

§ 1915(e)(2)(B)(iii), as to all individual capacity claims asserted against Lacy

Lansdown, for seeking monetary relief against a defendant who is immune from such

relief;

7. the Motion to Dismiss Plaintiffs Complaint and Brief in Support filed by Defendant

Lacy Lansdown (“Lansdown Motion’) (Dkt. 29) is denied as moot;

8. Savage’s First Motion to Amend (Dkt. 31), Second Motion to Amend (Dkt. 38), and

Third Motion to Amend (Dkt. 45) are denied; and

9. this is a final order terminating this action and a separate judgment shall be entered

herewith.

DATED this 15th day of March, 2024.

GREGO -FRIZZELL

UNITED STATES DISTRICT JUDGE

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