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