Pendergraft v. Board of Regents of Oklahoma Colleges

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

MARK A. PENDERGRAFT, )

)

Plaintiff, )

)

v. )

)

BOARD OF REGENTS OF ) Case No. CV-18-0793-D

OKLAHOMA COLLEGES, )

DAVID MISAK, in his individual )

Capacity, and TODD THURMAN, )

in his individual capacity. )

)

Defendants. )

ORDER

Defendants David Misak and Todd Thurman bring before the Court a Partial Motion

to Dismiss [Doc. No. 38] seeking the dismissal of Count VI of Plaintiff’s Fourth Amended

Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff, appearing pro se, has filed a

Response in Opposition [Doc. No. 39]. The matter is now at issue.1

BACKGROUND

The facts of the present case are set forth in the Court’s previous Order [Doc. No.

33] granting in part and denying in part Defendants’ Partial Motion to Dismiss [Doc. No.

22]. They will not be restated here. In that Order, Plaintiff’s conspiracy claim (Count VI)

was dismissed with prejudice as to Defendants Board of Regents of Oklahoma Colleges

(“BROC”) and Misak and Thurman in their official capacity, and dismissed without

prejudice as to Defendants Misak and Thurman in their individual capacities. See Order,

1 A reply brief was not filed.

August 13, 2019 [Doc. No. 33]. Plaintiff was granted leave to amend his conspiracy claim

to address the factual deficiencies identified in the Order. On September 27, 2019, Plaintiff

filed his Fourth Amended Complaint [Doc. No. 37].2 The Fourth Amended Complaint

identifies Count VI as a cause of action for conspiracy under 42 U.S.C. § 1983. Defendants

Misak and Thurman renewed their motion to dismiss Plaintiff’s conspiracy claim and

contend the Fourth Amended Complaint does not cure the deficiencies that existed in the

prior amended complaint.

STANDARD OF DECISION

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

enough facts that, when accepted as true, “state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. In assessing

plausibility, a court must accept all well-pleaded factual allegations as true and construe

them in the light most favorable to the plaintiff. Alvarado v. KOB-TV, L.L.C., 493 F.3d

1210, 1215 (10th Cir. 2007). However, conclusory allegations are not entitled to the

2 Although titled the Fourth Amended Complaint, this document is actually the third

amended complaint to be filed in this action. A document titled Third Amended Complaint

was attached to Plaintiff’s Motion for Leave to Amend Plaintiff’s Amended Complaint

[Doc. No. 35] but was not separately filed. To avoid confusion, the Court will use

Plaintiff’s title and refer to the operative pleading as the Fourth Amended Complaint.

assumption of truth and courts are free to disregard them. Khalik v. United Air Lines, 671

F.3d 1188, 1191 (10th Cir. 2012); see also Iqbal, 556 U.S. at 678–79.

In § 1983 cases, it is particularly important “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.” Robbins v. Oklahoma, 519 F.3d 1242, 1250

(10th Cir. 2008) (emphasis in original). Indeed, “it is incumbent upon a plaintiff to

‘identify specific actions taken by particular defendants’ in order to make out a viable §

1983 . . . claim.” Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (quoting

Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998)) (emphasis added by

the court in Pahls).

DISCUSSION

Defendants Misak and Thurman move for dismissal of Count VI of the Fourth

Amended Complaint under Rule 12(b)(6), asserting that Plaintiff has failed to state a claim

for conspiracy under § 1983. To state a claim for conspiracy under § 1983, a plaintiff must

plead facts showing both (1) the existence of a conspiracy and (2) an actual deprivation of

a constitutional right. Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir.1990); see

also Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1517 (10th Cir. 1995). Both

elements are required as “pleading and proof of one without the other will be insufficient.”

Dixon, 898 F.2d at 1449.

In pleading the conspiracy element, “a plaintiff must allege specific facts showing

an agreement and concerted action amongst the defendants.” Tonkovich v. Kansas Bd. of

Regents, 159 F.3d 504, 533 (10th Cir. 1998). There must be “a meeting of the minds, an

agreement among the defendants, or a general conspiratorial objective.” Brooks v.

Gaenzle, 614 F.3d 1213, 1227–28 (10th Cir. 2010). “Conclusory allegations of conspiracy

are insufficient to state a valid § 1983 claim.” Tonkovich, 159 F.3d at 533 (quoting Hunt

v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)).

Even liberally construed,3 Plaintiff’s Fourth Amended Complaint remains devoid of

facts sufficient to infer a conspiratorial agreement amongst Defendants to deprive Plaintiff

of a constitutional right. Like its previous iteration, the Fourth Amended Complaint alleges

Thurman terminated Plaintiff in order to hire a female assistant coach and that Misak

subsequently made statements supportive of the termination. Fourth Amended Complaint,

¶¶ 25, 26. The only new allegation in the Fourth Amended Complaint is that after

terminating Plaintiff, Thurman “advised Plaintiff he had already spoken with Defendant

Misak, and that they were in total agreement regarding Plaintiff’s wrongful termination.”

Id. at ¶ 25. This “conclusory allegation of agreement at some unidentified point does not

supply facts adequate to show illegality.” Twombly, 550 U.S. at 557. Likewise, Plaintiff’s

assertions that Misak and Thurman “conspired prior to Plaintiff’s termination,” “worked

in concert together,” and “hatched a plan…to deprive Plaintiff of his constitutional,

statutory, and common law rights” are simply conclusory allegations that are not entitled

to the presumption of truth. Plaintiff has failed to allege the specific facts necessary to

3 The Court recognizes that because he is acting pro se, Plaintiff’s pleadings are generally

held to a less stringent standard than pleadings drafted by lawyers. Smith v. United States,

561 F.3d 1090, 1096 (10th Cir. 2009). This relaxed standard does not, however, “relieve

the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim

could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

show that Defendants Misak and Thurman reached a “meeting of the minds” or engaged

in concerted action regarding his termination.4

Moreover, Plaintiff has failed to identify any constitutional right that was violated

as a result of the Defendants’ alleged conspiracy. The “essence of a § 1983 claim is the

deprivation of the right rather than the conspiracy.” Dixon, 898 F.2d at 1449. Plaintiff’s

failure to allege the actual deprivation of a constitutional right is fatal to his claim.

Accordingly, Plaintiff’s conspiracy claim as to Misak and Thurman must be

dismissed with prejudice. A dismissal with prejudice is appropriate because “allowing

[Plaintiff] a third opportunity to re-plead the § 1983 claims—which were devoid of any

specific factual allegations that could support a plausible claim of conspiracy—would be

futile.” Turnbough v. Wantland, 676 F. App’x 811, 814 (10th Cir. 2017); see also Breton

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

CONCLUSION

As detailed above, Plaintiff has failed to state a claim for conspiracy under 42 U.S.C.

§ 1983 against Defendants Misak and Thurman.

4 Plaintiff has attached three exhibits to his response brief which he contends “confirm

Plaintiff was an employee of SWOSU.” Response at 14. He does not explain how these

exhibits provide any support for his § 1983 conspiracy claim.

IT IS THERFORE ORDERED that Defendants’ Partial Motion to Dismiss [Doc.

No. 38] is GRANTED. Plaintiff's 42 U.S.C. § 1983 conspiracy claim (Count VI) is

dismissed with prejudice.

IT IS SO ORDERED this 30" day of December, 2019.

\ by Q

TIMOTHY D. DeGIUSTI

Chief United States District Judge

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