# Pendergraft v. Board of Regents of Oklahoma Colleges

> District Court, W.D. Oklahoma · December 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10388088

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** December 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10388088. Public record. Not legal advice.