Washington v. Oklahoma City City of

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MICHAEL C. WASHINGTON, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-1116-D

)

TIMOTHY ROGERS, )

MICHAEL GILLESPIE, )

TRACI SIMPSON, )

KAY BAUMAN, )

THE CITY OF OKLAHOMA CITY, )

POLICE CHIEF BILL CITTY, )

LT. J. RODGERS, )

OFFICER H. BENNETT, )

OFFICER J. BUSCH, and )

OFFICER G. BELL, )

)

Defendants. )

ORDER

Before the Court is a Motion to Dismiss filed by Defendants Heather Bennett,

Joseph Busch, and Gregory Bell (“Moving Defendants”) [Doc. No. 5]. Plaintiff has not

filed a response nor requested additional time in which to do so. Also at issue is Plaintiff’s

Motion for Summary Judgment as to Moving Defendants [Doc. No. 27], to which Moving

Defendants have responded in opposition [Doc. No. 29]. The Court will first address the

motion to dismiss because the case cannot proceed against Moving Defendants if Plaintiff

has not adequately stated a claim for relief.

BACKGROUND

This case arises out of Plaintiff’s arrest on June 18, 2016, for disturbing the peace

and disorderly conduct at a Juneteenth celebration1 at the Ralph Ellison Library in

Oklahoma City, Oklahoma. Plaintiff, a pro se litigant, filed his lawsuit in Oklahoma

County, Oklahoma, on December 7, 2017. [Doc. No. 1-1]. His Petition named Timothy

Rogers, Michael Gillespie, Traci Simpson, and Kay Bauman as defendants. Id. On June

4, 2018, Plaintiff filed an Amended Petition with the same case number but named a

different set of defendants – the City of Oklahoma City, Police Chief Bill Citty, Lt. J.

Rodgers, and Moving Defendants. [Doc. No. 1-21]. The Amended Petition identified new

causes of action, including § 1983 claims under the First, Fourth, and Fourteenth

Amendments. Id. The case was removed to federal court based on an assertion of federal

question jurisdiction under 28 U.S.C. § 1331. The Court denied Plaintiff’s Opposition to

Removal and Plaintiff’s Motion to Remand [Doc. Nos. 18, 25].

According to Plaintiff’s Amended Petition, Plaintiff oversees a nonprofit

organization, Empower People, Inc., which planned and was preparing to host a Juneteenth

ceremony at the Ralph Ellison Library in Oklahoma City on June 18, 2016. The celebration

had been approved by the library director, and Plaintiff had signed a contract with the

1 Juneteenth is an American holiday that commemorates the June 19, 1865 announcement

of the abolition of slavery in Texas, and more generally the emancipation of enslaved

African Americans throughout the former Confederate States of America. What is

Juneteenth? History and Flag to Commemorate the Emancipation of Slaves, NEWSWEEK,

June 19, 2019, www.newsweek.com/what-juneteenth-history-flag-commemorate-

emancipation-slaves-1444615 (last visited Oct. 7, 2019).

library to lease certain spaces. However, prior to the time the event officially began, library

staff called the police on Plaintiff.

Plaintiff alleges that Lt. J. Rodgers and Moving Defendants responded to the call

and spoke to library staff. Michael Gillespie, who was a library employee, signed a citation

accusing Plaintiff of disturbing the peace and disorderly conduct. Attached to Defendant’s

motion to dismiss is a copy of the citation.2 [Doc. No. 5-1]. According to Plaintiff, after

the citation was signed, he was arrested, pat-searched, placed in handcuffs, and transported

to the Oklahoma County Jail.

Although Plaintiff alleges that no criminal charges were ever filed, Moving

Defendants assert that Plaintiff was convicted of disturbing the peace by the Oklahoma

City Municipal Court on March 9, 2017. [Doc. No. 5-2]. The Court takes judicial notice3

of the Oklahoma Court of Criminal Appeals’ order denying Plaintiff’s request to appeal

out of time his misdemeanor conviction for disturbing the peace in Case No. 16-7043329,

which is attached as an exhibit to Moving Defendants’ motion to dismiss. Id.

Under 42 U.S.C. § 1983, Plaintiff asserts federal claims for violations of his

constitutional rights stemming from his arrest: (1) false arrest and false imprisonment in

2 In ruling on a motion to dismiss, the Court may consider documents that the Amended

Petition incorporates by reference, documents referred to in the Amended Petition that are

central to Plaintiff’s claims and as to which the parties do not dispute authenticity, and

matters of which the Court may take judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186

(10th Cir. 2010).

3 See United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir. 2007) (a court may

exercise its discretion to take judicial notice of publicly filed records from other courts

concerning matters that bear directly upon the disposition of the case at hand); see also

Gee, 627 F.3d at 1186.

violation of the Fourth and Fourteenth Amendments; (2) retaliatory arrest based on

freedom of speech and assembly under the First Amendment; and (3) unlawful arrest in

violation of due process under the Fourteenth Amendment.4 Plaintiff also asserts violations

of his Oklahoma constitutional rights. Further, Plaintiff asserts negligent and intentional

infliction of emotional distress claims and tortious interference of his contractual rights

against Moving Defendants. Plaintiff’s claims are brought against Moving Defendants in

their individual capacities. [Doc. No. 1-21 at 1].

STANDARD OF DECISION

Although Plaintiff’s action was originally filed in state court, upon removal, Rule

12(b)(6) of the Federal Rules of Civil Procedure and the pleading standards announced in

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662

(2009) govern the sufficiency of his allegations. See Smith v. Bayer Corp., 564 U.S. 299,

304 n. 2 (2011) (“[F]ederal procedural rules govern a case that has been removed to federal

court.”) (citation omitted); Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010)

(“After the removal of an action from state court … it has been settled by numerous cases

that the removed case will be governed by the Federal Rules of Civil Procedure and all

other provisions of federal law relating to procedural matters.”) (citation omitted).

4 Plaintiff references the Fifth Amendment on the first page of his Amended Petition;

however, he does not address it thereafter. Regardless, the Due Process Clause of the Fifth

Amendment only applies to federal government actors, and the federal government is not

involved here. Koessel v. Sublette County Sheriff’s Dep’t, 717 F.3d 736, 748 n. 2 (10th Cir.

2013).

Further, since Plaintiff appears pro se, the Court is required to construe his filings

liberally. Calhoun v. Attorney Gen. of Colo., 745 F.3d 1070, 1073 (10th Cir. 2014).

However, it must not assume the role of advocate, United States v. Pinson, 584 F.3d 972,

975 (10th Cir. 2009), and is under no obligation to construct legal arguments on Plaintiff’s

behalf. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “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.” Iqbal, 556

U.S. at 678. The “plausibility standard” announced in Twombly and Iqbal is not a

“heightened standard” of pleading, but rather a “refined standard.” Khalik v. United Air

Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citing Kansas Penn Gaming, LLC v. Collins,

656 F.3d 1210, 1214 (10th Cir. 2011)). Under the “refined standard,” plausibility refers “to

the scope of the allegations in the complaint: if they are so general that they encompass a

wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their

claims across the line from conceivable to plausible.’” Khalik, 671 F.3d at 1191; see also

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S.

at 570).

Further, the Tenth Circuit has noted that “[t]he nature and specificity of the

allegations required to state a plausible claim will vary based on context.” Khalik, 671

F.3d at 1191 (quoting Kansas Penn Gaming, 656 F.3d at 1215). “Thus, [it has] concluded

the Twombly/Iqbal standard is ‘a middle ground between heightened fact pleading, which

is expressly rejected, and allowing complaints that are no more than labels and conclusions

or a formulaic recitation of the elements of a cause of action, which the Court stated will

not do.’” Id. (quoting Robbins, 519 F.3d at 1247).

“In other words, Rule 8(a)(2) still lives. There is no indication the Supreme Court

intended a return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d

at 1191. It remains true that “[s]pecific facts are not necessary; the statement need only

‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.’”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555); see also

al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) (“Twombly and Iqbal do not require

that the complaint include all facts necessary to carry the plaintiff’s burden.”). However,

“complaints in § 1983 cases against individual government actors pose a greater likelihood

of failures in notice and plausibility because they typically include complex claims against

multiple defendants.” Robbins, 519 F.3d at 1249. Thus, “[t]he Twombly standard may

have greater bite in such contexts ….” Id. “[I]t is particularly important in such

circumstances that the complaint make clear exactly who is alleged to have done what to

whom, to provide each individual with fair notice as to the basis of the claims against him

or her, as distinguished from collective allegations against the state.” Id. at 1250 (emphasis

in original).

Finally, “[w]hile the 12(b)(6) standard does not require that Plaintiff establish a

prima facie case in [its] complaint, the elements of each alleged cause of action help to

determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at 1192

(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)). “[A] well-pleaded

complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged]

facts is improbable, and ‘that a recovery is very remote and unlikely.’” Sanchez v. Hartley,

810 F.3d 750, 756 (10th Cir. 2016) (citing Twombly, 550 U.S. at 556).

DISCUSSION

Plaintiff’s § 1983 claims are barred by Heck v. Humphrey.

Plaintiff asserts federal claims against Moving Defendants under 42 U.S.C. § 1983

for violations of his right to assemble and free speech under the First Amendment, his

alleged unlawful arrest under the Fourth and Fourteenth Amendments, and for violations

of his due process rights under the Fourteenth Amendment. Although the Court must

accept all well-pled factual allegations in the Amended Petition as true, that same tenet “is

inapplicable” to legal conclusions. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014)

(quoting Khalik, 671 F.3d at 1190). In other words, the Court is required to accept the

factual allegations that Plaintiff was arrested during his Juneteenth celebration at the

library, but the Court does not have to accept Plaintiff’s legal conclusion that his arrest was

unconstitutional.

As indicated supra, the Court has taken judicial notice of the order in Plaintiff’s

state case denying his request to appeal out of time his misdemeanor conviction for

disturbing the peace. Thus, his conviction has not been reversed on direct appeal or been

declared invalid by a state tribunal; therefore, he cannot recover damages for his § 1983

claims. See Heck v. Humphrey, 512 U.S. 477, 486-487 (1994) (“We hold that, in order to

recover damages for allegedly unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a conviction or sentence invalid,

a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal authorized to

make such a determination, or called into question by a federal court’s issuance of a writ

of habeas corpus, 28 U.S.C. § 2254.”). Under Heck, Plaintiff’s § 1983 claims against

Moving Defendants are precluded until his disturbing the peace conviction has been

invalidated. Plaintiff has not demonstrated that his conviction has been invalidated. Id;

see also Martinez v. Albuquerque, 184 F.3d 1123, 1125 (10th Cir. 1999) (holding that a

civil suit for an unreasonable seizure predicated on a false arrest is barred so long as the

conviction for the same arrest remains unimpaired).

There is no private right of action for Plaintiff’s Oklahoma constitutional claims,

and Bosh does not recognize individual capacity claims.

Plaintiff’s conviction for disturbing the peace5 also forecloses his claim under

Article II, § 3 of the Oklahoma Constitution. Article II, § 3 of the Oklahoma Constitution

guarantees people “the right peaceably to assemble for their own good.” OKLA. CONST.

art. II, § 3. Plaintiff alleges that Moving Defendants’ “wrongful arrest … was intended to

and did curtail” Plaintiff’s rights to free speech and assembly under Article II, §§ 3 and 22

of the Oklahoma Constitution. [Doc. No. 1-21 at 4]. Disturbing the public peace is a

violation of public order or public decorum. Stewart v. State, 109 P. 243, 245 (Okla. Crim.

5 It is a crime under Article V, Division 1, § 30-82 of the Oklahoma City Municipal Code

to “make any loud or unusual noise … or use any abusive or violent language, or threaten

to fight or quarrel or challenge to fight … which disturbs by day or night the peace and

quiet or annoys the inhabitants of the City.”

App. 1910) (defining peace as the “tranquility enjoyed by the citizens of a municipality or

community where good order reigns among its members”).

The constitutional guarantee of the right of assembly under the First Amendment

and OKLA. CONST. art. II, § 3 “must be given the most liberal and comprehensive

construction,” however, it is “to be enjoyed by the people in a peaceful and law-abiding

manner.” Lair v. State, 316 P.2d 225, 233 (Okla. Crim. App. 1957) (internal quotation

marks and citation omitted). Plaintiff’s conviction for disturbing the peace precludes him

from arguing that he was acting in “a peaceful and law-abiding manner.” Therefore, his

arrest did not violate OKLA. CONST. art. II, § 3. Further, a plaintiff pressing a retaliatory

arrest claim based on speech protected by the First Amendment must plead and prove the

absence of probable cause for the arrest. Nieves v. Bartlett, 139 S.Ct. 1715, 1725 (2019).

The Supreme Court’s emphasis on probable cause in Nieves is consistent with the

recognition by the Oklahoma Court of Criminal Appeals in Lair that the right of assembly

should be construed liberally, but also enjoyed in a peaceful and law-abiding manner.

Plaintiff has not alleged any facts in his Amended Petition to show an absence of probable

cause for his arrest.

It is also unsettled whether Plaintiff has a private right of action under Bosh v.

Cherokee County Bldg. Auth., 305 P.3d 994 (Okla. 2013), to sue for violations of OKLA.

CONST. art. II, §§ 2, 3, and 22. See, e.g., Poff v. Okla. Dep’t of Human Services, Case No.

CIV-15-936-R, 2017 WL 2468978, at *2-3 (W.D. Okla. June 7, 2017) (declining to

exercise supplemental jurisdiction over a claimed violation of OKLA. CONST. art. 2, § 22

in light of the disagreement among the state and federal courts regarding the scope of

Bosh); Duvall v. Okla. State Bd. of Osteopathic Examiners, Case No. CIV-17-247-F, 2018

WL 6333708, at *10 (W.D. Okla. Aug. 10, 2018) (concluding that it was unsettled whether

the plaintiff had a private right of action under Bosh to sue for violations of OKLA. CONST.

art. II, §§ 3 and 22). Regardless, Plaintiff’s claim under any of those constitutional

provisions fails because Bosh does not extend to individual employees. See Duvall, 2018

WL 6333708, at *8 (dismissing state constitutional claims against the defendant because

of his nonemployer status and the fact that the claims were being raised against him in his

individual capacity); see also Morris v. Humphrey, Case No. CIV-14-497-W, 2014 WL

3488895, at *2 (W.D. Okla. July 11, 2014) (dismissing a Bosh claim against the police

chief in his individual capacity because the police chief was not the employer of the police

officers charged with using excessive force).

For the same reasons, Plaintiff’s constitutional claims for false arrest and false

imprisonment, and an alleged violation of fundamental due process under OKLA. CONST.

art. II, § 7, fail. See Langkamp v. Mayes Emergency Services Trust Auth., Case No. CIV-

16-676-CVE, 2017 WL 2819003, at *6-7 (N.D. Okla. June 29, 2017) (where the plaintiffs

asserted claims under OKLA. CONST. art. II, § 2, 3, 7, and 22, the court declined to extend

Bosh to create new causes of action and concluded the plaintiffs had failed to state a claim

for relief).

Plaintiff’s Amended Petition fails to plead facts sufficient to show intentional

infliction of emotional distress and negligent infliction of emotional distress.

Under Oklahoma law, an action for intentional infliction of emotional distress will

lie only where there is extreme and outrageous conduct coupled with severe emotional

distress. Gaylord Entm’t Co. v. Thompson, 958 P.2d 128, 149 (Okla. 1998). To prevail on

this claim, a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2)

the defendant’s conduct was extreme and outrageous; (3) the defendant’s conduct caused

the plaintiff emotional distress; and (4) the emotional distress was severe. Computer

Publications, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002).

Recovery under this theory is “governed by very narrow standards,” and the “trial

court acts as a gatekeeper regarding the outrageousness of the defendant’s conduct and the

severity of the plaintiff’s distress.” Miner v. Mid-America Door Co., 68 P.3d 212, 223

(Okla. Civ. App. 2002); Welton, 49 P.3d at 735. A plaintiff must plead facts to show that

a defendant engaged in conduct that was not only unreasonable but was also “‘beyond all

possible bounds of decency in the setting in which it occurred’” or “‘utterly intolerable in

a civilized community.’” Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 942 (10th

Cir. 1994) (quoting Eddy v. Brown, 715 P.2d 74, 77 (Okla. 1986)).

Plaintiff alleges that “countless witnesses,” including those participating in the

Juneteenth celebration, watched as Plaintiff was handcuffed, pat searched, and placed in

the backseat of a police car. [Doc. No. 1-21 at 3]. Plaintiff alleges that he “felt like his

world had come crashing down on him as people watched and shook their heads in disbelief

that he was being driven away from the library as if he were a common criminal.” Id.

Plaintiff’s Amended Petition, however, fails to assert sufficient factual allegations that

Moving Defendants engaged in any conduct to intentionally or recklessly inflict emotional

distress upon Plaintiff. Rather, Plaintiff alleges that Lt. J. Rodgers ordered Moving

Defendants to arrest Plaintiff. [Doc. No. 1-21 at 3]. Thus, they were acting at the behest

of their supervisor. Plaintiff has also not pled facts to show that Moving Defendants’

conduct was unreasonable. Again, Plaintiff’s conviction for disturbing the peace remains

unimpaired. Thus, Plaintiff has failed to state a claim for intentional infliction of emotional

distress.

“[U]nlike a cause of action for intentional infliction of emotional distress, negligent

infliction of emotional distress is not an independent tort.” Kraszewski v. Baptist Med. Ctr.

of Oklahoma, Inc., 916 P.2d 241, 243 n. 1 (Okla. 1996). “Under Oklahoma’s jurisprudence

the negligent causing of emotional distress is not an independent tort, but is in effect the

tort of negligence.” Lockhart v. Loosen, 943 P.2d 1074, 1081 (Okla. 1997). Consequently,

“before damages for mental suffering may be collected, the plaintiff must establish: a duty

on the part of the defendant to protect the plaintiff from injury; a failure of the defendant

to perform the duty; and an injury to the plaintiff resulting from the failure.” Kraszewski,

916 P.2d at 243 n. 1. Plaintiff has not pled facts to show that Moving Defendants had a

duty to protect Plaintiff, that they failed to perform that duty, or that an injury to Plaintiff

resulted from the failure. Thus, Plaintiff has failed to state a claim for negligent infliction

of emotional distress.

Plaintiff has failed to state a claim for tortious interference with his contractual

rights.

Plaintiff alleges that Moving Defendants tortuously interfered with his contractual

rights. In Oklahoma, an action for tortious interference of a contract “arises when one

maliciously interferes in a contract between two parties inducing one of them to break the

contract to the detriment of the other.” Niemeyer v. U.S. Fid. and Guar. Co., 789 P.2d

1318, 1320 (Okla. 1990). In other words, Plaintiff must allege that a third party, i.e.,

Moving Defendants, wrongfully induced library staff to breach the agreement. Gabler v.

Holder and Smith, Inc., 11 P.3d 1269, 1278 (Okla. Civ. App. 2000). There is no allegation

in Plaintiff’s Amended Petition that Moving Defendants induced library staff to breach

their contract with Plaintiff. Rather, Plaintiff alleges that Moving Defendants were called

to the library by library staff.6 [Doc. No. 1-21 at 2]. Further, Plaintiff asserts that library

staff told Moving Defendants that Plaintiff had committed disorderly conduct prior to

Moving Defendants’ arrival at the library. Id. at 4. Moreover, Plaintiff alleges that Michael

Gillespie, a library employee, signed the citation accusing him of disorderly conduct. Id.

at 3; see also [Doc. No. 5-1]. Plaintiff has failed to state a claim for tortious interference

with a contract.

CONCLUSION

Based on the foregoing, the Motion to Dismiss filed by Defendants Heather Bennett,

Joseph Busch, and Gregory Bell [Doc. No. 5] is GRANTED. Plaintiff’s § 1983 claims

against Bennett, Busch, and Bell are dismissed without prejudice.7 Plaintiff’s Oklahoma

constitutional claims against Bennett, Busch, and Bell are dismissed with prejudice.

Plaintiff’s remaining state law claims against Bennett, Busch, and Bell for intentional

6 On page 4 of the Amended Petition, Plaintiff alleges that before the event “could get

underway, library staff summoned” Moving Defendants to come to the library. [Doc. No.

1-21 at 4].

7 See McNally v. Colorado State Patrol, 13 Fed. Appx. 806, 807-808 (10th Cir. July 3,

2001) (claims barred by Heck v. Humphrey are to be dismissed without prejudice since

claims cannot be brought unless and until the plaintiff can prove that his underlying

conviction has been overturned).

infliction of emotional distress, negligent infliction of emotional distress, and tortious

interference with his contractual rights are dismissed without prejudice. Plaintiff's Motion

for Summary Judgment as to Bennett, Busch, and Bell [Doc. No. 27] is DENIED as

MOOT. Further, Plaintiff’s Motion for Oral Argument [Doc. No. 30] is DENIED.°

IT IS SO ORDERED this 15" day of October 2019.

\ by Q

TIMOTHY D. DeGIUSTI

Chief United States District Judge

8 The Court finds that oral argument is unnecessary. See ClearOne Communications, Inc.

v. Biamp Sys., 653 F.3d 1163, 1187 (10" Cir. 2011) (where the parties propose to reiterate

arguments they already made in their briefs, a hearing is not necessary).

14