Martinez v. Ryel

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

KIMBERLY MARTINEZ, Mother )

and Next Friend of N.M., a minor, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-20-0833-F

)

TENESHA RYEL, an individual, and )

WOODWARD PUBLIC SCHOOLS, )

)

Defendants. )

)

TENEHA RYEL, an individual, )

)

Third-party plaintiff, )

)

-vs- )

)

KIMBERLY MARTINEZ, )

WOODWARD PUBLIC SCHOLS, )

JESSICA ROMINE, and CITY OF )

WOODWARD, )

)

Third-party defendants. )

ORDER

Four motions are before the court.

-- Defendant and third-party plaintiff Tenesha Ryel’s motion to remand. Doc.

no. 13. Supplemental brief at doc. no. 14.1

1 Jessica Romine and The City of Woodward’s response brief is at doc. no. 15. Their supplemental

response brief is at doc. no. 24. No reply brief was filed.

-- Woodward Public School’s2 (the district’s) motion to dismiss. Doc. no. 9.

The district seeks dismissal from Ryel’s cross-claims alleged in the third-party

complaint.3 The district’s motion is brought under Rules 12(b)(1) and (6), Fed. R.

Civ. P.

-- The City of Woodward’s (the city’s) motion to dismiss. Doc. no. 4. The

city seeks dismissal from Ryel’s third-party claims.4 The city’s motion is brought

under Rule 12(b)(6), Fed. R. Civ. P.

-- Jessica Romine’s motion to dismiss. Doc. no. 5. Romine seeks dismissal

from Ryel’s third-party claims.5 Romine’s motion is brought under Rule 12(b)(6),

Fed. R. Civ. P.

For the reasons set out in this order, the motion to remand will be denied, and

the motions to dismiss will be granted.

I. Procedural Background

This action was filed on May 13, 2019, in the District Court of Woodward

County, State of Oklahoma, by Kimberly Martinez, mother and next friend of N.M.,

a minor. Doc. no. 3-2. Martinez named as defendants Tenesha Ryel (an individual

previously employed by the district) and the district. Martinez’s claims are state-

law tort claims arising out of an alleged incident involving Ryel’s use of force to

discipline N.M.

On July 22, 2020, Ryel filed a pleading entitled “Counter/Cross-Claims and

Third-party Petition” against Martinez, the district, the city and Romine (a police

officer with the Woodward Police Department). Doc. no. 3-7. The court will refer

2 Independent School District No. 001 of Woodward County, Oklahoma, is known as Woodward

Public Schools.

3 Ryel’s response brief is at doc. no. 27. The district’s reply brief is at doc. no. 28.

4 Ryel’s response brief is at doc. no. 25. The city’s reply brief is at doc. no. 29.

5 Ryel’s response brief is at doc. no. 26. No reply brief was filed.

to this pleading as the third-party complaint. Ryel’s third-party complaint includes

state and federal claims. Accordingly, the city and Romine removed this action on

August 18, 2020. Doc. no. 1. They filed an amended notice of removal on August

20, 2020. Doc. no. 3.

II. The Third-Party Complaint

Ryel’s third-party complaint alleges as follows.

-- Ryel was hired by the district as a para-professional support employee. In

August of 2018, Ryel was assigned by the district to supervise the in-school

detention class at Woodward Middle School. Doc. no. 3-7, ¶¶ 5-6. The district

failed to provide Ryel with proper training and support for this position. Id. at ¶ 7.

-- N.M., the minor child of Martinez, had a long, documented history of

various problems of which the district and Martinez were aware. Id. at ¶ 9. On

September 19, 2018, N.M. was placed in the in-school detention class for violations

of school policy. Id. at ¶ 8. On that same date, Ryel sought assistance from her

principal due to N.M.’s disruptive behavior. Id. at ¶ 10. Ryel also sought assistance

from Romine, an officer with the Woodward Police Department, but Romine did not

respond. Id. at ¶11. Romine lacked proper training and supervision. Id. at ¶ 12.

-- After receiving no response to Ryel’s requests for assistance, Ryel was

forced to take action to discipline N.M. due to N.M.’s disruptive behavior. Id. at

¶13.

-- Martinez, N.M.’s mother, complained to the district that Ryel’s actions

were abusive. Martinez did so with the intent to extort money from Ryel and the

district. Id. at ¶¶14-15.

-- Rather than taking responsibility for their failure to respond to Ryel’s

requests for help, the district, “through its agents, conspired with Romine and

Martinez to conduct a sham investigation placing all blame on Tenesha [Ryel],

hoping to appease Martinez.” Id. at first-numbered ¶16.6

-- As a result of the above conspiracy, Ryel was wrongfully discharged from

her position. Id. at first-numbered ¶ 17. Also as a result of the conspiracy, Romine

“submitted a false police report to [the city], resulting in felony criminal charges

being filed against Tenesha [Ryel] in Woodward County.” Id. at second-numbered

¶ 16. Ryel was arrested and charged with a felony, which forced her to hire counsel

and appear in court. Id. at second-numbered ¶ 17. On November 27, 2019, the

charge was dismissed as without merit. Id. Also as a result of the conspiracy,

Martinez filed this action. Id. at ¶ 18. Other results of the conspiracy (in addition to

wrongful discharge, criminal charges, and this lawsuit) were that false information

was published in the Woodward News which is still available on-line. Ryel’s face

and name also appeared in “jail birds.” Ryel’s reputation has been destroyed and

she has lost employment opportunities. Id. at ¶19.

-- “As a result of said conspiracy, Tenesha’s [Ryel’s] civil rights were

violated in violation of 42 USC. § 1983-1986.” Id. at ¶ 20.

-- Ryel suffered damages in excess of $75,000. Id. at ¶ 21. The conduct of

the third-party defendants “was willful, wanton, malicious and designed to harm

Tenesha [Ryel],” and punitive damages should be awarded. Id. at ¶ 22.

III. Motion to Remand

Ryel asks the court to remand this action based on abstention.

The doctrine of abstention, under which a district court may decline to

exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow

exception to the duty of the district court to adjudicate a controversy properly before

6 The third-party complaint includes two paragraphs numbered 16 and two paragraphs numbered

17.

it. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959). Ryel

argues that abstention is appropriate in certain civil rights actions to avoid needless

conflict with the state’s administration of its own affairs. She argues that the basis

for abstention that applied in Ranchos Palos Verdes Corp. v. City of Laguna Beach,

390 F. Supp.1004 (C.D. Calif. 1975), applies here. Doc. no. 13, p. 11.

Ranchos Palos Verdes applied the Pullman abstention doctrine.7 The policy

underlying the Pullman abstention doctrine is that federal courts should avoid

premature constitutional adjudication. Caldara v. City of Boulder, 955 F.3d 1175,

1178 (10th Cir. 2020). The concern is that a federal court will be forced to interpret

a state law without the benefit of state court consideration and render the federal

court’s decision advisory and the litigation underlying it meaningless. Id., citing

Moore v. Sims, 442 U.S. 415, 428 (1979). The doctrine avoids federal court error

in deciding state-law questions antecedent to federal constitutional issues by

allowing for parties to adjudicate disputes involving unsettled state-law issues in

state courts. Id., citing Arizonans for Official English v. Arizona, 520 U.S. 43, 76

(1997). Accordingly, Pullman abstention requires that:

(1) an uncertain issue of state law underlies the federal

constitutional claim;

(2) the state issues are amenable to interpretation and such

an interpretation obviates the need for or substantially

narrows the scope of the constitutional claim; and

(3) an incorrect decision of state law by the district court

would hinder important state law policies.

7 Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). In Rancho Palos Verdes,

exceptional circumstances called for abstention under Pullman because the federal issues could be

avoided depending on the proper interpretation of California’s complex statutory scheme regarding

land use control, much of which had not been interpreted by state courts. 390 F. Supp. at 1005-

06.

Id. at 1179, citing Lehman v City of Louisville, 967 F.2d 1474, 1478 (10th Cir. 1992).

Ryel has not identified any unsettled issues of state law. Nor has Ryel

explained how any unsettled issues of state law, once determined by the state court,

would obviate the need for, or substantially narrow the scope of, Ryel’s federal

constitutional claims. There is no basis for abstention under Pullman or any other

abstention doctrine.8 Ryel’s motion to remand will be denied.

IV. Motions Seeking Dismissal

From Ryel’s Third-Party Complaint

The court will address the movants’ challenges to the sufficiency of Ryel’s

federal claims, after which it will address Ryel’s state-law claims.

A. Ryel’s Federal Claims

The district, the city and Romine move for dismissal from Ryel’s federal

claims under Rule 12(b)(6).

The inquiry under Rule 12(b)(6) is whether the complaint contains enough

facts to state a claim for relief that is plausible on its face. Ridge at Red Hawk,

L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir., 2007), quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 547 (2007). To survive a motion to dismiss, a

plaintiff must nudge her claims across the line from conceivable to plausible. Id.

The mere metaphysical possibility that some plaintiff could prove some set of facts

in support of the pleaded 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, 493 F.3d at 1177. In conducting its

review, the court assumes the truth of the plaintiff’s well-pleaded factual allegations

and views them in the light most favorable to the plaintiff. Id.

8 Ryel makes no developed argument about any abstention doctrine other than Pullman.

Pleadings that are no more than legal conclusions are not entitled to the

assumption of truth; while legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations. Ashcroft v. Iqbal, 556

U.S.662, 664 (2009). When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they plausibly give rise to

an entitlement to relief. Id. The court will disregard mere “labels and conclusions”

and “[t]hreadbare recitals of the elements of a cause of action” to determine if what

remains meets the standard of plausibility. Twombly, 550 U.S. at 555; Iqbal, 556

U.S. at 678. “Determining whether a complaint states a plausible claim for relief will

… be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

Ryel’s federal claims are conspiracy claims brought under 42 U.S.C.

§§1983-86. This is clear because the allegation specific to the federal claims states

that:

As a result of said conspiracy, Tenesha’s [Ryel’s] civil

rights were violated in violation of 42 USC § 1983-1986.

Doc. no. 3-7, ¶ 20. The conspiracy in question is described as follows in the

third-party complaint:

Rather than taking responsibility for their failure to

respond to Tenesha’s requests for help, WPS [the district],

through its agents, conspired with Romine and Martinez

to conduct a sham investigation placing all blame on

Tenesha, hoping to appease Martinez.

Id. at first-numbered ¶ 16.

The first question is to what extent the statutes cited in the third-party

complaint—42 U.S.C. §§ 1983-1986—can, as a matter of law, potentially support

some type of a conspiracy claim.

Section 1983. As pertinent here, 42 U.S.C. § 1983 provides that every person

who, under the color of the law of any state, subjects any citizen of the United States

to the deprivation of any rights secured by the United States Constitution or federal

law, shall be liable to the party injured. A conspiracy claim may be brought under

§ 1983, but such a claim requires, among other things, an actual deprivation of a

right secured by the United States Constitution or federal law. Dixon v. City of

Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990). This is because the essence of a

§1983 claim is the deprivation of the right rather than the conspiracy. Id.

Section 1984. Subsections one and two of § 1984 have been declared

unconstitutional. In re “The Civil Rights Cases,” 109 U.S. 3 (1883). Subsections

three and four were repealed in 1948. Accordingly, § 1984 cannot support a federal

conspiracy claim (or any other kind of claim).

Section 1985. The only potentially relevant subsection of § 1985 is subsection

(3). Subsection (3) applies to a private conspiracy that is driven by some racial or

otherwise class-based discriminatory animus. Brooks v. Gaenzle, 614 F.3d 1213,

1227 (10th Cir. 2010), citing Dixon, 898 F.2d at 1447. These types of conspiracy

claims may be brought under §1985(3).

Section 1986. As pertinent here, § 1986 provides that every person who,

having knowledge that any of the wrongs conspired to be done and mentioned in

§1985 are about to be committed, and having the power to prevent or aid in the

preventing of the commission of the same, and who neglects or refuses to do so,

shall be liable to the injured party if such wrongful act is committed. Thus, a claim

under § 1986 depends upon an actionable conspiracy claim under § 1985. Brown v.

Reardon, 770 F.2d 896, 907 (10th Cir. 1985). In other words, § 1986 provides a

cause of action against a person for failure to act to prevent a § 1985 conspiracy, but

§ 1986 is not, itself, a conspiracy statute.

In short, movants are entitled to dismissal with prejudice from Ryel’s federal

conspiracy claims brought under §1984 and §1986. On the other hand, conspiracy

claims are potentially available under §1983 and §1985(3). The next question,

therefore, is whether Ryel has plausibly alleged a conspiracy claim against any of

the movants under § 1983 or § 1985(3). For the reasons stated below, the court finds

she has not.

Differences exist between § 1983 and § 1985(3) conspiracies. For instance,

§1983 applies to defendants acting under color of state law, while §1985(3) applies

to private conspiracies driven by some racial or otherwise class-based discriminatory

animus. Brooks, 614 F.3d at 1227. That said, a § 1983 conspiracy and a §1985(3)

conspiracy also have certain things in common. A conspiracy under either of these

statutes requires at least a combination of two or more persons acting in concert and

an allegation of a meeting of the minds, an agreement among the defendants, or a

general conspiratorial objective. Id. at 1227-28. Moreover, a plaintiff must allege

specific facts showing an agreement and concerted action among the defendants

because conclusory allegations of conspiracy are insufficient. Id. at 1228.9 And see,

Tonkovich v. Kansas Board of Regents, 159 F.3d 504, 533-34 (10th Cir. 1998)

(decided at the motions to dismiss stage in the context of defendants’ qualified

immunity argument; plaintiff must allege specific facts showing an agreement and

concerted action among the defendants; conclusory allegations did not carry

plaintiff’s burden to allege facts to support conspiracy claim).

9 Brooks was decided at the summary judgment stage but there was a pleadings issue. On appeal,

Brooks argued he had sufficiently pled a conspiracy under § 1983 based on the entirety of his

complaint. 614 F.3d at 1227. The amended complaint, however, alleged that deputies Gaenzle

and Smith “conspired to make false reports and statements in the official proceedings investigating

[Deputy] Gaenzle’s shooting of [Brooks] in violation of 42 U.S.C. § 1985.” Id. at 1226. Whether

considered as a § 1983 or a § 1985 conspiracy claim, the court of appeals agreed with the district

court that Brooks’ “vague claim in his complaint of an alleged conspiracy does not raise a triable

issue of fact the deputies participated in a conspiracy.” Id. at 1228.

Ryel’s third-party complaint alleges a motivation for the conspiracy, which

was to place all blame on Ryel and appease Martinez. But there are no alleged facts

to show an agreement and concerted action among the third-party defendants to

violate Ryel’s federal constitutional rights. Even if the third-party defendants acted

in ways consistent with one another, or even if they all wished to blame Ryel and

appease Martinez, that would not be enough to plausibly allege that the district, the

city, Romine and Martinez agreed among themselves to violate Ryel’s civil rights.

Because the third-party complaint alleges no specific facts which, if proven, would

show an agreement or concerted action to violate Ryel’s civil rights, Ryel’s

conspiracy claims brought against the movants under § 1983 and §1985(3) fail under

Rule 12(b)(6).

The §1983 and § 1985(3) conspiracy claims also fail for reasons which apply

only to § 1983 conspiracies or only to § 1985(3) conspiracies, as discussed next.

A § 1983 conspiracy requires pleading, and ultimately proving, not only the

existence of a conspiracy but also an actual deprivation of rights secured by the

United States Constitution or federal law. Dixon, 898 F.2d 1443, 1449. As

explained below, the third-party complaint does not plausibly allege an actual

deprivation of Ryel’s federal constitutional rights by any of the alleged conspirators

(the district, the city, Romine or Martinez).

The district. The district allegedly acted, “through its agents,” to conduct a

sham investigation in order to place all blame on Ryel and appease Martinez. In

addition, Ryel alleges that the district assigned Ryel to supervise the in-school

detention class; that the district was aware of N.M.’s problems; that the district failed

to respond to Ryel’s call for assistance with N.M.; and that as a result of the

conspiracy, the district wrongfully discharged Ryel. Ryel does not allege the identity

of the agents who took any of the above-described acts on behalf of the district. But

even if she had done so, a defendant cannot be held liable for a §1983 violation based

on a theory of respondeat superior. Monell v. Department of Social Services of City

of New York, 436 U.S. 658 (1978); Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1249

(10th Cir. 1999) (citing Monell). Under Monell, a government entity is not liable

under §1983 for injury “inflicted solely by its employees or agents.” Monell, 436

U.S. at 694. Rather, a plaintiff must show that the complained-of actions were

“representative of an official policy or custom of the municipal institution, or are

taken by an official with final policy making authority.” Murrell, 186 F.3d at 1249.10

No such facts are alleged in the third-party complaint.

The only other allegation regarding conduct by the district is that the district

“failed to offer/provide Tenesha [Ryel] proper training and support” for her position.

Ryel does not allege how she was trained, nor does she allege how a failure to train

her or support her led to the deprivation of her federal constitutional rights by the

district. The failure to train or support allegations are conclusory and do not state a

claim for deprivation of Ryel’s federal constitutional rights by the district.

No underlying deprivation of rights protected by § 1983 is plausibly alleged

on the part of the district.

The city. Ryel’s claim that the city deprived her of her federal constitutional

rights rests primarily on the actions of Romine, an officer with the Woodward Police

Department. Ryel alleges that Romine failed to respond to Ryel’s request for help

with N.M., that Romine conspired with the district and Martinez to conduct a sham

investigation, and that Romine submitted a false police report to the city resulting in

an arrest of Ryel on a felony charge which was later dismissed. These allegations

10 And see, Schneider v. City of Grand Junction Police Dep't., 717 F.3d 760, 769-70 (10th Cir.

2013) (“A challenged practice may be deemed an official policy or custom for § 1983 municipal-

liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final

decision by a municipal policymaker, or deliberately indifferent training or supervision.”).

fail to state a claim against the city under §1983 because a §1983 claim cannot be

based on the acts of an agent (Romine) via the doctrine of respondeat superior.

In addition to the above allegations, Ryel alleges that Romine “lacked proper

training and supervision.” The third-party complaint does not allege any specifics

about Romine’s training or supervision. Nor does it explain why the deprivation of

Ryel’s federal constitutional rights would have been avoided with different training

or supervision of Romine. See generally, Sanchez v. City of Littleton, 2020 WL

5815913, **11-12 (D. Colo. September 30, 2020) (dismissing without prejudice

§1983 failure to supervise and/or train claims alleged against the city based on police

conduct; general allegations were insufficient; extended discussion, citing

authorities). The failure to train or supervise allegation is conclusory and does not

state a claim against the district under § 1983.

No underlying deprivation of rights protected by § 1983 is plausibly alleged

on the part of the city.

Romine. As has been noted, Ryel alleges that officer Romine failed to

respond when Ryel called for assistance with N.M. Ryel alleges that Romine

conspired with the district and Martinez to conduct a sham investigation. Ryel

alleges that as a result of the conspiracy, Romine submitted a false police report and

that Ryel was arrested on a felony criminal charge which was later dismissed on its

merits. The third-party complaint does not explain whether the alleged sham

investigation was an investigation by the school, the district or the city. It also does

not allege what, if any, role Romine played in the investigation. While Ryel alleges

that a false police report was submitted by Romine, Ryel does not allege that Romine

knew the police report was false when submitted.11

No underlying deprivation of rights protected by § 1983 is plausibly alleged

on the part of Romine.

Martinez. Ryel alleges that non-movant Martinez, the mother of N.M.,

conspired with the district and Romine to conduct a sham investigation intended to

place all the blame on Ryel and to appease Martinez. Ryel does not allege what

entity conducted the investigation or what specific role Martinez played in it, if any.

Ryel alleges that Martinez filed the instant lawsuit as a result of the alleged

conspiracy, but Ryel does not allege how the filing of this action would constitute a

deprivation of Ryel’s rights protected by § 1983.

No underlying deprivation of rights protected by § 1983 is plausibly alleged

on the part of Martinez.

Thus, the § 1983 conspiracy claims alleged against the movants fail because

an underlying deprivation of Ryel’s civil rights is not plausibly alleged. (This is in

addition to the determination that these claims fail because they do not allege specific

facts showing an agreement and concerted action among the defendants.)

Turning to Ryel’s federal conspiracy claims alleged against the movants under

§ 1985(3), this statute pertains to private conspiracies that are racially or class-based.

These claims fail because the third-party complaint does not allege facts to support

a racially or class-based conspiracy. (This is in addition to the determination that

11 See, generally, Hale v. Duvall, 268 F. Supp. 3d 1161, 1167 (D. Colo. 2017) (§ 1983 claim for

violation of fourth amendment rights against detectives who authored statement of probable cause

to obtain a search warrant, requires proof that the affiant knew the challenged information was

false or that the affiant had a reckless disregard for the truth); cf. Sanchez v. Hartley, 65 F. Supp.

3d 1111, 1124-25 (D. Colo. 2014) (after defendant asserted quailed immunity at the motions to

dismiss stage, court found that a claim was stated where plaintiff alleged that individual defendants

knowingly elicited false confessions from plaintiff then used confessions to prosecute without

disclosing their knowledge of the unreliability of the statements).

these claims fail because they do not allege specific facts showing an agreement and

concerted action among the defendants.)

Next the court addresses Romine’s assertion of qualified immunity. This

ground for dismissal applies to Ryel’s federal conspiracy claims alleged against

Romine in her individual capacity.12

To survive a motion to dismiss that is based on an assertion of qualified

immunity, a plaintiff must allege sufficient facts to show, when taken as true, that

the defendant plausibly violated plaintiff’s federal constitutional rights; plaintiff

must also show that such rights were clearly established at the time of the violation.

See, Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012) (what must be alleged

when qualified immunity is raised at the motions to dismiss stage). Ryel has carried

neither burden. For reasons already stated, the third-party complaint does not

plausibly allege that Romine violated Ryel’s federal constitutional rights. In

addition, Ryel has undertaken no analysis of clearly established law applicable to

Romine’s alleged acts. For example, Ryel’s response brief identifies no clearly

established law that would subject Romine to liability due to the submission of a

false or inaccurate police report. Accordingly, in addition to the other reasons for

dismissing Romine (and the other movants) from Ryel’s federal conspiracy claims,

Romine, to the extent she is named as a third-party defendant in her individual

capacity, is entitled to dismissal from these claims as they are currently alleged.

In summary, movants will be dismissed from Ryel’s federal conspiracy

claims. These dismissals are under Rule 12(b)(6). The federal conspiracy claims

alleged against the movants under § 1984 and § 1986 will be dismissed with

prejudice because these statutes cannot support a conspiracy claim. The federal

12 The third-party complaint does not specify in what capacity Romine is named as a third-party

defendant. Reading the third-party complaint as a whole, the court assumes, for now, that Ryel

intended to allege an individual capacity claim against Romine.

conspiracy claims alleged against the movants under §1983 and §1985 will be

dismissed without prejudice.

One more issue remains with respect to the federal conspiracy claims alleged

in the third-party complaint. This issue relates to Ryel’s federal conspiracy claims

against Martinez.

Although Martinez has not moved for dismissal from any claims, it is clear

the federal conspiracy claims alleged against her fail for reasons already discussed

in connection with movants’ arguments for dismissal. For instance, the federal

conspiracy claims alleged against Martinez under §1984 and §1986 fail because

those statutes cannot support a conspiracy claim. The federal conspiracy claims

alleged against Martinez under §1983 and §1985 fail because Ryel does not allege

specific facts to show an agreement and concerted action to deprive Ryel of her

federally protected rights. The § 1983 conspiracy claim alleged against Martinez

fails because Ryel does not plausibly allege an underlying deprivation of Ryel’s

federally protected rights. The §1983 conspiracy claim alleged against Martinez

fails because Martinez is not alleged to be a state actor or to have acted under color

of law, which is a requirement for a § 1983 conspiracy. The §1985 conspiracy claim

alleged against Martinez fails because § 1985(3), the only potentially applicable

subsection, requires a racially or class-based conspiracy, and no facts are alleged to

support that type of conspiracy.

In these circumstances it is appropriate for the court to dismiss Martinez from

Ryel’s federal conspiracy claims sua sponte, and the court will do so.

The court has concluded that none of the federal conspiracy claims alleged in

the third-party complaint state a plausible claim for relief against the district, the

city, Romine or Martinez. These claims will be dismissed under Rule 12(b)(6). This

ruling means that absent amendment, no federal claims remain for adjudication in

this action.

B. Ryel’s State-Law Claims

Movants ask the court to dismiss them from Ryel’s state-law claims on various

grounds. This order addresses only movants’ sovereign immunity argument, which

is based on the third-party complaint’s failure to allege compliance with the

requirements of the Oklahoma Governmental Tort Claims Act (the OGTCA), an Act

which provides a limited waiver of the state’s sovereign immunity. Because

dismissals on this ground implicate the court’s jurisdiction,13 movants’ OGTCA

arguments are considered under Rule 12(b)(1).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may

take two forms: a facial attack challenging the complaint's allegations or a factual

attack challenging the facts upon which subject matter jurisdiction depends. Holt v.

United States, 46 F.3d 1000, 1002 (10th Cir.1995). Here, the court does not need to

go beyond the face of Ryel’s third-party complaint to rule on movant’s OGTCA

arguments. Consequently, the court treats these arguments as a facial attack on

Ryel’s state-law claims. “[A] facial attack on the complaint's allegations as to

subject matter jurisdiction questions the sufficiency of the complaint. In reviewing

a facial attack on the complaint, a district court must accept the allegations in the

complaint as true.” Id.

All of Ryel’s state-law claims are tort claims, and the district and the city are

political subdivisions of the State of Oklahoma. The Oklahoma legislature has

consented to judicial enforcement of tort claims against the state and its political

subdivisions in the manner narrowly structured by the procedural requirements of

51 O.S. §§ 156 and 157 of the OGTCA. Shanbour v. Hollingsworth, 918 P.2d 73,

75 (Okla. 1996). Notice of a tort claim against a political subdivision of the state is

13 Compliance with the statutory notice provisions of the OGTCA is a jurisdictional requirement.

Hall v. GEO Group, Inc., 324 P.3d 399, 404 (Okla. 2014).

a mandatory or jurisdictional prerequisite to filing a tort claim against that entity in

court. I.T.K. v. Mounds Public Schools, 451 P.3d 125, 134 (Okla. 2019).

Accordingly, a party (Ryel) who asserts a claim against a political subdivision (the

district or the city) must allege either actual or substantial compliance with the notice

and other requirements of the OGTCA to avoid dismissal of such state-law tort

claims. Willborn v. City of Tulsa, 721 P.2d 803, 805 (1986).

Ryel’s third-party complaint does not mention the OGTCA or allege

compliance with any of its notice or other procedural requirements. As a result, Ryel

has not brought her state-law claims against the district or the city within the limited

waiver of sovereign immunity contained in the OGTCA. The district and the city

will be dismissed from those claims, without prejudice, under Rule 12(b)(1).

Romine, as an officer with the Woodward Police Department, is an alleged

employee of a political subdivision (the city). The OGTCA provides that an

employee of a political subdivision cannot be named as a defendant for acts within

the scope of her employment. 51 O.S. § 153(C). Accordingly, to the extent the

third-party complaint alleges acts by Romine that would fall within the scope of her

employment, Romine is entitled to dismissal from such claims based on sovereign

immunity.14 Romine will be dismissed from any such claims, without prejudice,

under Rule 12(b)(1).

The closest Ryel comes to alleging a state-law claim against Romine for acts

outside the scope of Romine’s employment is the allegation that Romine participated

in a sham investigation and submitted a false police report resulting in a felony

charge against Ryel which was later dismissed. Ryel does not allege the nature of

the investigation or Romine’s role in it. Ryel also does not allege that Romine

14 The third-party complaint does not specify which acts by Romine are within, or outside of, the

scope of her employment.

knowingly submitted a false or inaccurate police report. In these circumstances the

third-party complaint fails to state a plausible claim against Romine for acts outside

the scope of Romine’s employment. Romine will be dismissed from any such

claims, without prejudice, under Rule 12(b)(6).15

Taken together, the court’s rulings on Ryel’s state-law claims mean that the

movants are entitled to dismissal from those claims, without prejudice, under Rule

12(b)(1) or 12(b)(6). Non-movant Martinez, as the mother of N.M., does not enjoy

sovereign immunity, and the requirements of the OGTCA do not apply to Ryel’s

claims against her. For this and other reasons, the court does not address the

sufficiency of the state-law claims alleged against Martinez in the third-party

complaint.

V. Other Matters

The district argues that Ryel’s claim for punitive damages should be dismissed

because punitive damages are not recoverable against it under the OGTCA. See, 51

O.S. § 154(C) (“No award for damages in an action or any claim against the state or

a political subdivision shall include punitive or exemplary damages.” The district

also argues that punitive damages are not recoverable against a governmental agency

under § 1983. See, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)

(municipality immune from punitive damages under 42 U.S.C. § 1983). The court

notes these arguments but does not address them at this time. There is no need to do

so because the court has found that the district is entitled to dismissal from Ryel’s

claims on other, broader grounds.

Ryel’s briefs repeatedly mention a motion to dismiss filed by the district on

June 11, 2019, while this action was in state court. Ryel contends this motion

15 Claims based on acts outside the scope of employment are not covered by sovereign immunity

or the protections of the OGTCA. As the court’s jurisdiction is not implicated, this dismissal is

under Rule 12(b)(6) rather than Rule 12(b)(1).

remains pending. The district, however, states that it withdrew its motion after

Ryel’s criminal charges were dismissed on November 26, 2019. The local rules of

this court provide that motions which were pending in state court at the time of

removal will be considered withdrawn unless, within thirty days of removal, the

moving party files a notice of pending motion. LCvR81.2(b). That was not done

here. Accordingly, no matter the status of the district’s motion while this case was

pending in state court, that motion is not pending in this court.

Some of Ryel’s briefs incorporate other briefs or motions by reference.

Incorporation by reference may serve to extend the number of pages permitted by

the local rules of this court, although the court does not suggest that was the purpose

here. Going forward, incorporation by reference is not permitted without pre-

approval by the court. Future filings that do not comply may be stricken.

VI. Conclusion

After careful consideration, Tenesha Ryel’s motion to remand is DENIED.

Doc. no. 14.

The motions to dismiss filed by the district (doc. no. 9), the city (doc. no. 4),

and Romine (doc. no. 5) are GRANTED as follows.

Movants (the district, the city, Romine), as well as Martinez, are DISMISSED

with prejudice from the federal conspiracy claims alleged in Ryel’s third-party

complaint under 42 U.S.C. §1984 and §1986. Rule 12(b)(6), Fed. R. Civ. P.

Movants (the district, the city, Romine), as well as Martinez, are DISMISSED

without prejudice from the federal conspiracy claims alleged in Ryel’s third-party

complaint under 42 U.S.C. §§ 1983 and 1985. Rule 12(b)(6), Fed. R. Civ. P.

Movants (the district, the city, Romine) are DISMISSED without prejudice

from the state-law claims alleged in Ryel’s third-party complaint. These dismissals

are under Rule 12(b)(1) or Rule 12(b)(6), as specified earlier in this order. The court

does not address the sufficiency of Ryel’s state-law claims alleged against non-

movant Martinez in the third-party complaint, so those claims remain.

Ryel is GRANTED leave to file a “First Amended Counter/Cross-Claims and

Third-Party Complaint” within fourteen days of the date of this order. Any such

pleading Ryel opts to file shall include all amendments or additions Ryel seeks to

make with one exception. The exception is that Ryel is not permitted to re-allege

any claims under 42 U.S.C. § 1984. Any amended pleading that does not comply

will be stricken.

Alternatively, if Ryel opts not to amend, or if she amends and alleges only

state-law claims, the court, at that time, will enter a separate order remanding this

action to state court. In that scenario, the remand would not be based on abstention,

but would, instead, be based on the court’s decision (applying the well-established

rules governing the court’s exercise of its discretion with respect to the exercise of

supplemental jurisdiction) not to continue to exercise supplemental jurisdiction over

this action once it is clear no federal claims remain for adjudication.

IT IS SO ORDERED this 6" day of November, 2020.

AL put

STEPHENP.FRIOT” 3 = OCS

UNITED STATES DISTRICT JUDGE

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