Opinion

Zimmerman v. Dale

Court
District Court, W.D. Oklahoma
Filed
May 5, 2021
Cited by
0 cases
Authority
More cited than 28.6%

The opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

MICHAEL DAVID ZIMMERMAN, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-20-1251-F

)

KEITH DALE, a/k/a “Deputy Dale” in )

his individual capacity, et al., )

)

Defendants. )

ORDER

Introduction

This action brings claims under 42 U.S.C. § 1983. Doc. no. 1, ¶¶ 6, 7.

Plaintiff Zimmerman alleges that defendant Keith Dale, employed as the

undersheriff by the Woods County Sheriff’s Office (id. at ¶3), made false statements

to law enforcement officials. Specifically, the complaint alleges that on December

11, 2018, Dale made false statements in a search warrant affidavit which was

presented to a Woods County district judge. Id. at ¶ 11. The complaint alleges the

resulting search led to an indictment against Zimmerman as a “Prohibited Person in

Possession of Ammunition” in violation of 18 U.S.C. §922(g)(8). Id. at unnumbered

paragraph, p. 13. The complaint also alleges that on February 19, 2018, Dale made

false statements to an officer in the Enid Police Department (id. at ¶ 27), resulting in

charges against Zimmerman for “Child Abuse by Injury” per 21 O.S. §843.5(A)(B).

Id. at ¶ 36. The complaint alleges that after Dale’s false statements were disclosed,

the federal and state charge were dismissed. Id. at ¶ 37 (state charge), unnumbered

paragraph, p. 13 (federal charge).1

Motions

Two motions to dismiss are before the court. The motions are brought under

Rule 12(b)(6), Fed. R Civ. P. In the first motion, Woods County Sheriff’s Office

and the Board of County Commissioners of the County of Woods seek dismissal as

to claims. Doc. no. 10.2 In the second motion, Dale, who is sued in his individual

capacity only, moves for dismissal from the §1983 conspiracy claim alleged in the

fourth cause of action. Doc. no. 12.3

The motions will be granted for the reasons stated below.

Standards

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 his 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. Pleadings that are no

more than legal conclusions are not entitled to the assumption of truth; while legal

1 In addition, the complaint alleges that certain misdemeanor drug-related charges remain pending.

Doc. no. 1, ¶ 17(b).

2 Response brief, doc. no. 13; reply brief, doc. no. 15.

3 Response brief, doc. no. 14; reply brief, doc. no. 15.

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.

Motion to Dismiss by Woods County Sheriff’s Office

And the Board of County Commissioners

In proposition I of its motion, the Woods County Sheriff’s Office argues it is

not a legal entity subject to suit. Plaintiff’s response brief concedes this issue.

Accordingly, the motion to dismiss will be granted with respect to the Woods County

Sheriff’s Office.

In proposition II, the Board of County Commissioners (the Board) argues it is

not a proper defendant with respect to the § 1983 claims alleged in this action.

Plaintiff’s response brief concedes that he cannot, at this time, allege facts to support

a § 1983 conspiracy claim (the fourth cause of action) against the Board. The only

other claim which could conceivably be construed as alleged against the Board is

the second cause of action. Plaintiff makes no response to the Board’s argument for

dismissal from the second cause of action. Accordingly, to the extent the complaint

should be construed as naming the Board as a defendant with respect to the second

cause of action, plaintiff has implicitly conceded dismissal of the Board from this

claim.4 As plaintiff has conceded that the complaint fails to state a claim against the

Board in the only two claims in which the Board is arguably a defendant, the court

will grant the Board’s motion for dismissal from this action.

The above rulings moot the arguments made in propositions III, IV and V of

the motion. These propositions need not be addressed except in one respect.

Proposition V argues that plaintiff cannot maintain a claim for punitive damages

against either of the movants. Plaintiff, in response, states that he only seeks punitive

damages against parties who are individuals. Doc. no. 13, p. 5. To the extent that

the complaint should be construed as seeking punitive damages from defendants that

are not individuals (see, e.g., doc. no. 1, ¶ 75), such claims will be dismissed with

prejudice, based on plaintiff’s statement that he seeks no such damages.

Motion to Dismiss by Keith Dale

In proposition I of his moving brief, Dale argues he should be dismissed from

the § 1983 conspiracy claim (the fourth cause of action) because the allegations are

merely conclusory with respect to this claim.

Plaintiff points out that the fourth cause of action incorporates the other

allegations. See, doc. no. 1, ¶ 71. Among these other allegations, plaintiff’s response

brief focuses on the allegations that pertain to the Doe defendants. The Doe

defendants have not been identified or served and have not moved for dismissal.

Accordingly, the court interprets plaintiff’s focus on allegations related to the Doe

defendants as an effort by the plaintiff to show that a plausible conspiracy claim has

been alleged against Dale based on Dale’s interactions with one or more Doe

defendants.

4 See, LCvR7.1(g) (“Any motion that is not opposed within 21 days may, in the discretion of the

court, be deemed confessed.”).

Specifically, plaintiff relies on paragraphs 13, 14, 18 and 19 of the complaint.

Doc. no. 14, pp. 3-4. Paragraphs 13 and 14 allege that in Dale’s affidavit used to

secure a search warrant of plaintiff’s residence (plaintiff disputes it was a residence),

Dale swore he had learned from some unnamed source that plaintiff was hosting a

party at his residence (¶ 13), and Dale swore that he, Dale, had spoken with a campus

police officer (Blake Trekell) who told Dale a student (Landon Krueger) had been

pistol-whipped at a party at plaintiff’s residence (¶14). Paragraphs 18 and 19 allege

that these and other statements made in Dale’s affidavit were knowingly false.

To allege a § 1983 conspiracy, a complaint must allege facts sufficient to show

an agreement and concerted action among the defendants to deprive plaintiff of his

constitutional rights. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th

Cir. 1998).5 Here, the allegations relied on by plaintiff, addressed above, indicate

that Dale spoke with others before making representations in his search warrant

affidavit. The allegations, however, do not show an agreement and concerted action

among Dale and others to deprive plaintiff of his constitutional rights. Nor has the

court’s review of the complaint disclosed any allegations sufficient for that purpose.

Accordingly, the complaint fails to state a §1983 conspiracy claim against

Dale, and Dale’s motion will be granted as to this claim (the fourth cause of action).

Proposition II of Dale’s brief asserts qualified immunity as an alternative

ground for Dale’s dismissal from the conspiracy claim.

When qualified immunity is raised at the Rule 12(b)(6) stage, it is the

defendant’s conduct as alleged in the complaint that is scrutinized. See, Doe v.

5 In Tonkovich, allegations that faculty members met with administrators, then signed a letter

soliciting complaints about the plaintiff from students, were not enough to show the faculty

members were acting in concert with the administrators to deprive Tonkovich of his constitutional

rights. 159 F.3d at 533. (Tonkovich addresses these issues in the context of defendants’ qualified

immunity argument. The court found that Tonkovich had failed to carry his burden of alleging

facts necessary to support his § 1983 conspiracy claim. Id.)

Woodard, 912 F.3d 1278, 1288 (10th Cir. 2019), citing Behrens v. Pelletier, 516 U.S.

299, 309 (1996). Thus, it is the pleadings, not the evidence or actual facts, that

determine the issue. Moreover, when a defendant asserts qualified immunity at the

pleadings stage, the court must allow plaintiff an opportunity to come forward with

either alleged facts, or proposed amended factual allegations, which show both that

the defendant’s alleged conduct violated the law, and that the law in question was

clearly established when the alleged violation occurred. Pueblo Neighborhood

Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988). Unless such a

showing is made, the defendant prevails on his qualified immunity defense. Id.

The court has already determined that the complaint, as it stands, does not

allege a plausible § 1983 conspiracy claim against Dale. In addition, plaintiff has

had an opportunity to propose, in his response brief, any factual allegations he might

add to his complaint to support a § 1983 conspiracy claim against Dale. Plaintiff’s

response brief improperly embeds requests for leave to amend,6 but his brief makes

clear that he currently has no additional facts to allege.

Plaintiff has not carried his burden in response to Dale’s invocation of

qualified immunity on the § 1983 conspiracy claim. Dale is therefore entitled to

qualified immunity with respect to this claim as currently alleged. This ruling

constitutes an alternative basis for dismissing Dale from the fourth cause of action.

Conclusion

The motions to dismiss are GRANTED under Rule 12(b)(6), Fed. R. Civ. P.,

as follows. Doc. nos. 10, 12.

The Woods County Sheriff’s Office is DISMISSED from this action with

prejudice.

6 See, LCvR7.1(c) (response brief may not include a motion by the responding party).

The Board of County Commissioners of the County of Woods is

DISMISSED from this action without prejudice.’

Keith Dale is DISMISSED without prejudice from the § 1983 conspiracy

claim alleged in the fourth cause of action.

To the extent the complaint seeks punitive damages from any defendants that

are not individuals, such punitive damages claims are DISMISSED with prejudice.

Finally, the court notes that plaintiff’s response brief indicates, several times,

that plaintiff intends to amend to remove the Woods County Sheriff's Office and the

Board of County Commissioners from this action, to remove Dale from the fourth

cause of action, and to withdraw claims for punitive damages against defendants that

are not individuals. These changes are effected by this order. Accordingly, no

amendments are necessary for these purposes.

IT IS SO ORDERED this 5" day of May, 2021.

AL put

STEPHEN P. FRIOT ——

UNITED STATES DISTRICT JUDGE

20-1251p002.docx

’ The dismissals with respect to the Board and Dale are without prejudice, in deference to

plaintiffs argument that he may be in a position to move for leave to amend at a later date

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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