Tarrant v. Perry

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

NANIKKA TARRANT, KENNETH )

TERREL, SIDALEE TARRENT, JOHN )

DOE, and JANE DOE, )

)

Plaintiffs, )

)

v. ) Case No. CIV-20-00891-PRW

)

MATHEW PERRY, AARON GLASS, )

THE TOWN OF MAYSVILLE, and THE )

MAYSVILLE TOWN BOARD, in their )

official and individual capacities, )

)

Defendants. )

ORDER

Before the Court is Defendant Town of Maysville and Maysville Town Board’s

Motion to Dismiss (Dkt. 8), the Plaintiffs’ Response in Opposition (Dkt. 11), and the Town

Defendants’ Reply (Dkt. 12). For the following reasons, the Defendants’ Motion to Dismiss

is GRANTED.

Background1

Plaintiffs Nanikka Tarrant and Kenneth Terrel live in the Town of Maysville, a

small town in southern Oklahoma.2 Around 1:00 p.m. on May 31st, 2019, Maysville Police

Officer Matthew Perry entered Ms. Tarrant’s property. Ms. Tarrant voluntarily engaged

1 At this stage the Court accepts the Plaintiff’s well-pleaded allegations as true, so the

account presented in this factual background reflects Plaintiff’s account.

2 This case is Tarrant I. A later-filed case—Tarrant, et al., v. Perry, et al., CIV-20-01065-

PRW—involving related plaintiffs, identical defendants, identical attorneys on both sides,

and substantially similar claims is also pending before this Court.

Officer Perry in conversation for some period of time, then ended the interaction by telling

Officer Perry that he was trespassing and asking him to leave. Officer Perry then stated that

he smelled marijuana odors emanating from the residence and ordered Ms. Tarrant not to

return to the residence. Police Chief Aaron Glass subsequently arrived on the scene and

the officers discussed entering the residence to look for another individual who had

outstanding arrest warrants. Chief Glass asked Ms. Tarrant if there was marijuana in the

residence, to which Ms. Tarrant replied they needed a warrant to search the premises. The

officers then arrested Ms. Tarrant. Ms. Tarrant asked why she was being arrested and

refused to present her arms for physical restraint, at which point the two officers tackled

Ms. Tarrant, physically forcing her to the ground and handcuffing her. During this physical

arrest, Ms. Tarrant and Mr. Terrel’s unborn child (Sidalee Tarrant) suffered injuries that

ultimately resulted in a miscarriage.

Plaintiffs filed suit for money damages under 42 U.S.C. § 1983, advancing four

claims: (1) that all Defendants committed an unlawful physical beating of Ms. Tarrant, in

violation of the Equal Protection Clause and Due Process Clause of the Fourteenth

Amendment and an unreasonable search and seizure in violation of the Fourth Amendment;

(2) that the Town, Town Board, and Chief Glass failed to adequately hire, train, and

supervise the officers, creating a de facto policy that led to the officers’ conduct against

Ms. Tarrant, in violation the Equal Protection Clause and Due Process Clause of the

Fourteenth Amendment, the Excessive Force Clause of the Eighth Amendment, and the

unreasonable searches and seizures guarantee of the Fourth Amendment; (3) that all

Defendants caused the death of a child, in violation of Title 12, § 1055 of the Oklahoma

Statutes; and (4) damages on behalf of the Estate of Sidalee Tarrant.

Plaintiffs sued Officer Perry, Chief Glass, the Town, and the Town Board, but has

not yet returned service for Officer Perry and Chief Glass. As such, the Town and the Town

Board are the only defendants who have currently entered an appearance in this action.

Now, these two Defendants seek to dismiss all claims against them pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.

Legal Standard

When reviewing a Rule 12(b)(6) motion to dismiss, all well-pleaded allegations in

the complaint must be accepted as true and viewed “in the light most favorable to the

plaintiff.”3 Parties bear the “obligation to provide the grounds of [their] entitle[ment] to

relief requires more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.”4 The pleaded facts must thus be sufficient to establish that

the claim is plausible.5 In considering whether a plausible claim has been made, the Court

“liberally construe[s] the pleadings and make[s] all reasonable inferences in favor of the

non-moving party.”6 However, when considering a Rule 12(b)(6) motion to dismiss, the

Court also examines whether the claim fails as a matter of law despite sufficiently detailed

3 Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting David v.

City & County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996)).

4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and

citations omitted) (alteration in original).

5 See id.

6 Brokers’ Choice of Am., Inc. v. NBC Univ., Inc., 861 F.3d 1081, 1105 (10th Cir. 2017).

factual allegations. Thus, the Court “may grant judgment as a matter of law under Federal

Rule of Civil Procedure 12(b)(6) on the basis of an affirmative defense . . . when the law

compels that result.”7

Discussion

The Defendants’ Motion to Dismiss advances several different arguments regarding

why the complaint should be dismissed, including arguments as to the specific claims

raised under the Eighth Amendment, under Oklahoma’s death-of-a-child statute, and

whether any claims were even stated by Kenneth Terrel or the Estate of Sidalee Tarrant.

However, the Court finds it necessary to only address the three arguments dealing with

whether the Town and Town Board can be sued at all, as these three arguments correctly

dictate the full dismissal of these two Defendants.

I. The Town Board in its Official Capacity

To begin, the complaint charges both the Town of Maysville and the Maysville

Town Board.8 However, Defendants correctly argue that the Town Board, operating in its

official capacity, is not a separate, legally-suable entity.

Rule 17(b) of the Federal Rules of Civil Procedure provides that a non-corporate

entity’s capacity to be sued is determined by the law of the state in which the district court

is located.9 Under Oklahoma law, a municipality is a “person” for purposes of § 1983

7 Caplinger v. Medtronic, Inc., 784 F.3d 1335, 1341 (10th Cir. 2015).

8 The Complaint names the “Maysville Town Council,” but the entity managing the

municipal government is correctly known as the “Town Board,” so the Court adopts this

vernacular.

9 Fed. R. Civ. P. 17(b).

liability.10 However, it is also well-established that a subdivision entity of a municipality

cannot be sued under § 1983, because the subdivision entity has no “separate legal

identity.”11

Here, any official actions taken by the Town Board in its official capacity are fully

synonymous with actions of the Town of Maysville itself. As such, the Town Board in its

official capacity has no separate legal identity outside of the Town—any liability incurred

due to the official actions of the Town Board is borne by the Town. Accordingly, the Town

Board, in its official capacity, is a subdivision entity lacking a separate, suable identity,

and must be dismissed from the action.

II. The Town Board Members in their Individual Capacities.

The complaint also seeks to recover against the individual members of the Town

Board for their “deliberate indifference to an obvious need for train and supervision,”

which allegedly “created a policy or de facto policy for the use of excessive force.”12

Defendants argue that any such claims should be dismissed, as the Plaintiffs failed to

plausibly state claims against any individual board member in their individual capacity.

10 See Barnthouse v. City of Edmond, 73 P.3d 840, 851 (Okla. 2003); see also Okla. Stat.

tit. 51, § 152.

11 See Glover v. Oklahoma City, 2021 WL 6066880, at *2 (W.D. Okla. Oct. 14, 2021);

Chester v. Altus Police Dep’t, 2019 WL 748054, at *2 (W.D. Okla. Oct. 10, 2019); see also

Ketchum v. Albuquerque Police Dep’t, 1992 WL 51481, at *2 (10th Cir. Mar. 12, 1992)

(finding a municipal police department not a suable entity since it lacks a legal identity

apart from the municipality or county); Shangreaux v. Midwest City Police Dep’t, 936 F.2d

583 (Table), at *2 (10th Cir. 1991) (“The police department of Midwest City is not a suable

entity. Of course, to remedy this defect, Shangreaux needs only to amend his complaint to

name Midwest City as a defendant.”).

12 Compl. (Dkt. 1), at 6.

To establish a § 1983 claim against public official, the Plaintiffs must sufficiently

plead both that the board members acted under color of state law and that there was “some

form of personal involvement on the part of the individual defendants.”13 It is not enough

for the Plaintiffs to “show a defendant was in charge of other state actors who actually

committed the violation.”14 They must “establish ‘a deliberate, intentional act by the

supervisor to violate constitutional rights.’”15 And since the board members “must be

personally ‘involved in the constitutional violation’” to be liable,16 the complaint must be

specific enough about each individual board members’ alleged role and responsibility to

provide “fair notice as to the basis of the claims against him or her.”17

Here, the complaint fails to name, identify, or describe the actions of the board

members that the Plaintiffs seek to hold personally liable. The extent of their claims are

conclusory recitations of elements—such as “deliberate indifference,” failure to “train and

supervis[e],” and “widespread town policy, practice and custom”—that they level against

the Town Board as a whole. At no point do the Plaintiffs clarify what sort of personal

involvement any or all of the board members had or what sort of deliberate, intentional acts

any or all of the board members took to facilitate the alleged constitutional violations. And

13 Bruner v. Baker, 506 F.3d 1021, 1026 (10th Cir. 2007) (citing Coleman v. Turpen, 697

F.2d 1241, 1246 n.7 (10th Cir. 1982)).

14 Serna v. Colo. Dep’t of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006).

15 Id. (quoting Jenkins v. Wood, 81 F.3d 988, 994–95 (10th Cir. 1996)).

16 Id. (quoting Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir. 2006)).

17 Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 921 n.9 (10th Cir. 2012) (quoting

Robbins v. Okla., 519 F.3d 1242, 1250 (10th Cir. 2008)).

in their response to the motion to dismiss, the Plaintiffs cite no authority to support the idea

that such brief and cursory allegations are sufficient to survive a 12(b)(6) motion. Instead,

they argue for the first time that “as discovery and evidence is generated,” they will uncover

and demonstrate that “warnings were being provided and ignored” and that “individual

council members . . . created an abusive police force” and “unleashed these officers onto

the Maysville public.”

But in resolving a 12(b)(6) motion the Court considers only the well-pleaded

allegations in the complaint, not a plaintiff’s post-hoc attempt to remedy deficit pleadings

through additional allegations. And “threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements,” are insufficient to allow a claim to

proceed or allow a plaintiff to embark on a fishing expedition for evidence.18 Accordingly,

the Court finds that the Plaintiffs have failed to state a claim against any individual board

member, so all claims against the Town Board in their individual capacity must also be

dismissed.

III. The Town of Maysville.

Finally, the Plaintiffs assert that the Town of Maysville is liable under § 1983 for

the officers’ alleged conduct due to its “fail[ure] to adequately hire, train and supervise”

the officers19 and its “deliberate indifference . . . creat[ing] a de facto policy or acceptance”

18 Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)).

19 Compl. (Dkt. 1), at 7.

of the officers’ alleged conduct,20 which were allegedly “part and parcel of a widespread

town policy, practice and custom which is further established by the involvement in, and

ratification of, these actions by municipal supervisors and policy makers.”21 Defendants

now argue that the Plaintiffs have failed to plausibly state a claim against the Town, as

well, since the allegations in the complaint amount to a claim of vicarious liability.

It is well-established that a municipality cannot be held liable under § 1983 on a

theory of respondeat superior or vicarious liability.22 Thus, a municipality “may not be

sued under § 1983 for an injury inflicted solely by its employees or agents,” and any claim

must be dismissed unless the complaint demonstrates that “execution of a government’s

policy or custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury.”23 Here, the minimum pleading

standards still apply—a plaintiff must do more than offer a conclusory statement of “failure

to train and to supervise” or “deliberate indifference.”24 A plaintiff must plead specific

facts sufficient to support conclusions that there was a formal policy, an adopted custom,

or specific actions taken in the course of failure to train or supervise—and also “a direct

20 Id. at 8.

21 Id. at 7.

22 See Waller v. City & County of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (quoting

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)).

23 Monell, 436 U.S. at 694.

24 See Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010); see also Bd. Of Cty.

Comm’rs v. Brown, 520 U.S. 397, 410–12 (1997); Dodds v. Richardson, 614 F. 3d 1185,

1212 (10th Cir. 2010) (Tymkovich, J., concurring).

causal link between the policy or custom and the injury alleged” must be demonstrated.25

When evaluating such a claim, “rigorous standards of culpability and causation must be

applied to ensure that the municipality is not held liable solely for the actions of its

employee.”26 The heightened causal element “is applied with especial rigor when the

municipal policy or practice is itself not unconstitutional, for example, when the municipal

liability claim is based upon inadequate training, supervision, and deficiencies in hiring.”27

And claims of deliberate indifference likewise carries “a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or obvious consequence of his

action,”28 requiring that “the municipality has actual or constructive notice that its action

or failure to act is substantially certain to result in a constitutional violation, and it

consciously or deliberately chooses to disregard the risk of harm.”29

Here, the complaint fails to survive even the minimal pleading standards, much less

the heightened standards by which the Court reviews claims alleging failure to train and

supervise or deliberate indifference. The complaint offers conclusory statements that

regurgitate the key words identified in other successful actions. But beyond this, the

Plaintiffs plead no facts. They plead no specific facts of action or inaction relating to the

officers’ allegedly deficit hiring, training, or supervision. They plead no specific facts

25 Waller, 932 F.3d at 1284 (quoting Bryson, 627 F.3d at 788).

26 Id. (quoting Brown, 520 U.S. at 405).

27 Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013).

28 Connick v. Thompson, 563 U.S. 51, 61 (2011) (quoting Brown, 520 U.S. at 410).

29 Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998).

relating to any potential prior misconduct by the officers, the Town’s knowledge of any

such prior misconduct, or the Town’s decision to ignore any such prior misconduct. Devoid

of even the most basic factual pleadings, their complaint is also inevitably devoid of any

attempt at demonstrating the required casual links between the alleged “de facto policy”

and any knowledge or actions by the Town. In their response to the motion to dismiss, the

Plaintiffs again offer no legal arguments or citation to authority in the face of Defendants’

motion to dismiss on these grounds. Instead, they state—again for the first time—that the

Town has “literally assigned” Chief Glass all authority to design policy and custom, and

that they hope to cultivate their failure-to-supervise claim as discovery proceeds.

Yet once again, the Court can consider only the well-pleaded factual allegations

present in the complaint when resolving a 12(b)(6) motion. When a claim is based on “mere

‘labels and conclusions’” devoid of pleaded factual allegations, it cannot be maintained.30

Since the Plaintiffs claims against the Town of Maysville are nothing more than

generalized conclusions of vicarious liability lacking the pleaded facts necessary to support

any inference about culpability or causation, their claims are barred as a matter of law and

the Town must be dismissed from the action.

Conclusion

When examining a complaint to resolve a 12(b)(6) motion, the Court “disregard[s]

conclusory statements and look only to whether the remaining, factual allegations plausibly

30 Khalik, 671 F.3d at 1191 (quoting Twombly, 550 U.S. at 555).

suggest the defendant is liable.”?! Here, disregarding the conclusory statements leaves

nothing left as to Defendant Town of Maysville and Defendant Town Board. Between the

Plaintiffs’ failure to plead factual allegations that plausibly state a claim and the application

of pertinent rules of law limiting what types of claims may proceed under § 1983, the Court

finds that both remaining Defendants must be dismissed from the action entirely.

Accordingly, the Defendants’ Motion to Dismiss (Dkt. 8) is GRANTED.

IT ISSO ORDERED this 31st day of March 2022.

nme

UNITED STATES DISTRICT JUDGE

31 Td.

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