# Martinez v. Ryel

> District Court, W.D. Oklahoma · November 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10388515

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** November 6, 2020
- **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

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10388515. Public record. Not legal advice.