Livingston

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

AARON J. LIVINGSTON,

Plaintiff,

v. Case No. 24-CV-0360-JFH-JFJ

CITY OF TULSA and STATE OF

OKLAHOMA,

Defendants.

OPINION AND ORDER

Plaintiff Aaron J. Livingston (“Livingston”), appearing pro se and proceeding in forma

pauperis, brings this federal civil rights action pursuant to 42 U.S.C. § 1983. Dkt. No. 11. Before

the Court is the Motion to Dismiss (“Motion”) submitted by Defendant State of Oklahoma

(the“State”). Dkt. No. 23. The Third Amended Complaint is also before the Court, sua sponte,

for screening as well as Livingston’s Motion for Summary Judgment [Dkt. No. 20] and Motion to

Supplement [Dkt. No. 25]. For the reasons discussed herein, Oklahoma’s Motion is GRANTED,

Livingston’s claims against the City of Tulsa are DISMISSED and Livingston’s motions [Dkt.

Nos. 20 and 25] are DENIED AS MOOT.

BACKGROUND

Livingston initiated this suit raising several claims stemming from his arrest on April 19,

2023. See Dkt. No. 11. Livingston contends he was unreasonably searched and seized (Claim 1),

he was falsely arrested (Claim 2), authorities used excessive force (Claim 2), he was falsely

imprisoned (Claim 3), and he was maliciously prosecuted (Claim 4) in violation of the Fourth

Amendment. See Dkt. No. 11 at 11-18.1 Livingston asserts Claims 1, 3 and 4 against the State.

1 The Court’s citations refer to the CM/ECF header pagination.

See id. at 12, 14, 15, 23, 24-26. And, Livingston asserts Claims 1 through 4 against the City of

Tulsa. See id. at 11-17.

DISCUSSION

I. Oklahoma’s Motion to Dismiss

The State moved to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), arguing it is entitled to Eleventh Amendment immunity. Dkt. No. 23. Livingston filed

a Response to the State’s Motion wherein he argued the State has waived Eleventh Amendment

immunity, citing Okla. Stat. tit. 51, § 152.1(B) as support. See Dkt. No. 26. Section 152.1(B) is a

part of the State’s Governmental Tort Claims Act (“GTCA”). The State submitted a Reply noting

that Livingston’s Third Amended Complaint is comprised of Fourth Amendment claims, and that

he did not allege a state law tort claim. See Dkt. No. 35. The State further argued that if

Livingston’s Third Amended Complaint is construed as stating a state law tort claim against it,

Livingston failed to comply with the GTCA notice requirements. Id. Livingston, without leave

of Court, filed a Sur-Reply wherein he argued that he did allege a violation of state laws in his

Third Amended Complaint, he did provide the defendants with the requisite GTCA notice, and

defendant did not have “sovereign immunity in Indian Country or on tribal lands.” See Dkt. No.

36.

As an initial matter, even liberally construing Livingston’s Third Amended Complaint,2

Livingston does not allege a state law tort claim. See Dkt. No. 11. Livingston does cite various

Oklahoma statutes throughout his Third Amended Complaint. See, e.g., id. at 19-22. Livingston

also quotes Okla. Stat. tit. 51, § 153(c). Id. at 10. However, Livingston cites these state statutes

2 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

as supporting his Fourth Amendment claims, not as a standalone state law tort claim. See id. at

19-22.

Having dispensed with Livingston’s Response arguments regarding the assertion of a state

law claim, the Court now turns to Oklahoma’s Eleventh Amendment immunity argument. The

State maintains it enjoys sovereign immunity under the Eleventh Amendment and, thus, the action

must be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. Dkt. 23 at 4-6; see

also Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (“[A]n assertion of Eleventh

Amendment immunity concerns the subject matter jurisdiction of the district court.”). “Rule

12(b)(1) motions generally take one of two forms: (1) a facial attack on the sufficiency of the

complaint’s allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon

which subject matter jurisdiction is based.” Id. Because the State’s Rule 12(b)(1) challenge

constitutes a facial attack on the allegations of subject matter jurisdiction, the Court presumes the

allegations contained in the Third Amended Complaint to be true. Id.

“The Eleventh Amendment generally bars suits against a state in federal court commenced

by citizens of that state or citizens of another state.” Good v. Dep’t of Educ., 121 F.4th 772, 788

(10th Cir. 2024) (emphasis and internal quotations omitted); see U.S. Const. amend. XI; Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 54, 65 (1996). The bar “applies regardless of whether a

plaintiff seeks declaratory or injunctive relief, or money damages.” Steadfast Ins. Co. v. Agric.

Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007). Eleventh Amendment immunity, however, “is not

absolute.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012).

There are three exceptions. First, a state may consent to suit in federal court.

Second, Congress may abrogate a state’s sovereign immunity by appropriate

legislation when it acts under Section 5 of the Fourteenth Amendment. Finally,

under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may bring suit against

individual state officers acting in their official capacities if the complaint alleges an

ongoing violation of federal law and the plaintiff seeks prospective relief.

Id. (citations omitted). “Oklahoma has not consented to be sued in federal court.” Berry v.

Oklahoma, 495 F. App’x 920, 921 (10th Cir. 2012);3 accord Callahan v. Poppell, 471 F.3d 1155,

1159 (10th Cir. 2006). And since the Court concluded Livingston failed to allege a state law tort

claim, the Court need not address whether the State has waived sovereign immunity for purposes

of the GTCA. Nor has Congress abrogated states’ sovereign immunity through enactment of 42

U.S.C. § 1983. Berry, 495 F. App’x at 921-22. Finally, Livingston has not named any individual

state officers. See Dkt. No. 11 at 2. Therefore, the State is entitled to Eleventh Amendment

immunity, and the Court dismisses the State from this litigation.

II. Claims against the City Tulsa

Because this Court granted Livingston leave to proceed in forma pauperis, this Court has

a continuing obligation to dismiss this action “at any time” if the complaint— “(i) is frivolous or

malicious, (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief

from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Accordingly, the

Court now, sua sponte, turns to Livingston’s allegations against the City of Tulsa.4

In determining whether dismissal is appropriate, a court must accept as true all well-

pleaded facts and view those facts in the plaintiff's favor. Santa Fe All. for Public Health & Safety

v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021). When, as here, a plaintiff appears without

counsel, the court must liberally construe the complaint. Hall, 935 F.2d at 1110. This means “if

the court can reasonably read the pleadings to state a valid claim on which the plaintiff could

prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of

3 The Court cites all unpublished decisions herein for their persuasive value. See Fed. R. App. P.

32.1; 10th Cir. R. 32.1.

4 The Court acknowledges the City of Tulsa has not been served. Dkt. No. 38. Nevertheless, the

Court is still permitted to screen the Third Amended Complaint. 28 U.S.C. § 1915(e)(2)(B).

various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading

requirements.” Id. Nonetheless, “‘when the allegations in a complaint, however true, could not

raise a [plausible] claim of entitlement to relief,’ the cause of action should be dismissed.” Elias

v. DeLapp, Case No. 17-CV-220-GKF, 2017 WL 2454074, at *1 (N.D. Okla. June 6, 2017)

(unpublished) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007)).

Livingston asserts each of his Fourth Amendment claims against the City of Tulsa. See

Dkt. No. 11 at 11, 13 and 15. The Court understands Livingston’s claims against the City of Tulsa

as being premised on his assertion that it did not have authority to arrest him because the victim

of his purported crimes was an Indian. Id. at 11-12. Livingston repeats throughout his Third

Amended Complaint that the City of Tulsa was without jurisdiction to arrest and detain him. See

id. at 11 (“Tulsa had no jurisdiction to arrest the Plaintiff[.]”), 13 (“Tulsa lacked jurisdiction to

seize the Plaintiff” and “Tulsa … imprisoned the Plaintiff fals[e]ly, with no jurisdiction[.]”), 15

(“Tulsa … caused the Plaintiff to be confined by its false arrest, where it had no legal authority/

jurisdiction[.]”). Livingston relies upon Bosse v. State, 484 P.3d 286 (Okla. Crim. App. 2021) and

Grayson v. Lewis, 485 P.3d 250 (Okla. Crim. App. 2021) (Lewis, J. specially concurring), for this

proposition. However, the United States Supreme Court’s decision in Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022), forecloses Livingston’s position.

The Castro-Huerta Court held “the Federal Government and the State have concurrent

jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country,” 597

U.S. at 633; and (2) reaffirmed that “[s]tates have jurisdiction to prosecute crimes committed by

non-Indians against non-Indians in Indian country,” id. at 637. Therefore, Livingston has failed

to raise a plausible a Fourth Amendment violation against the City of Tulsa premised upon the

purported lack of jurisdiction to arrest and detain him as a non-Indian.5 For these reasons, the

Court dismisses Livingston’s claims against the City of Tulsa for failure to state a claim upon

which relief may be granted.

III. Miscellaneous Motions

Livingston also filed a Motion for Summary Judgment [Dkt. No. 20] on April 8, 2025, and

a Motion to Supplement his Motion for Summary Judgment [Dkt. No. 25] on April 18, 2025.

Having concluded Livingston failed to state a claim against either the State or the City of Tulsa,

the Court DENIES AS MOOT Livingston’s Motion for Summary Judgment [Dkt. No. 20] and

Motion to Supplement [Dkt. No. 25].

CONCLUSION

As explained above, dismissal of Livingston’s claims against the State and the City of Tulsa

is appropriate. The remaining question is whether this action should be dismissed with or without

prejudice. Because the Eleventh Amendment bars Livingston’s claims against the State, the Court

dismisses the Third Amended Complaint, in part, without prejudice, for lack of subject matter

jurisdiction. But dismissal with prejudice “is appropriate where a complaint fails to state a claim

under Rule 12(b)(6) and granting leave to amend would be futile.” Seale v. Peacock, 32 F.4th

1011, 1027 (10th Cir. 2022) (quoting Knight v. Mooring Capital Fund, LLC, 749 F.3d 1180, 1190

(10th Cir. 2014)). Livingston was provided four (4) opportunities and guidance from the Court to

5 The Court notes Livingston’s references throughout his Third Amended Complaint to “Section

100-101 Municipal Criminal Court/Additional Jurisdiction” ordinances, “§ 14 of the Curtis Act”

and other sections of “local law” as the purported “ordinance, custom, and usage” supporting his

municipal liability claims. See Dkt. No. 11 at 11-13, 15, 19-21, 23. While a municipal policy can

include “a policy statement, ordinance, regulation, or decision officially adopted and promulgated

by that body’s officers” or “issued by a municipal department or its officials” for purposes of

municipal liability under § 1983, the Court need not address the alleged policies since Livingston

failed to allege a cognizable Fourth Amendment claim. Brown v. City of Tulsa, 124 F.4th 1251,

1264 (10th Cir. 2025) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 694 (1978)).

state a plausible claim. See Dkt. Nos. 1, 5, 9, 11 (Livingston’s Complaints); see also Dkt. Nos. 3

and 8 (Court orders directing Livingston to file an amended complaint and providing guidance).

Given after four (4) attempts Livingston has failed to state a plausible claim against any defendant,

the Court finds and concludes that any further amendment would be futile and dismisses the Third

Amended Complaint, in part, with prejudice, as to the claims against the City of Tulsa.

IT IS THEREFORE ORDERED that Defendant State of Oklahoma’s Motion to Dismiss

[Dkt. No. 23] is GRANTED and the Third Amended Complaint is DISMISSED WITHOUT

PREJUDICE, in part, for lack of subject matter jurisdiction as to the claims asserted against

Defendant State of Oklahoma.

IT IS FURTHER ORDERED that the Third Amended Complaint is DISMISSED WITH

PREJUDICE, in part, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1), for failure to state a claim upon

which relief may be granted as to the claims asserted against Defendant City of Tulsa.

IT IS FURTHER ORDERED that Plaintiff Aaron Livingston’s Motion for Summary

Judgment [Dkt. No. 20] and Motion to Supplement [Dkt. No. 25] are DENIED AS MOOT.

IT IS FURTHER ORDERED that this is a final order terminating this action.

IT IS FURTHER ORDERED that a separate judgment shall be entered herewith.

Dated this 28th day of October 2025.

C )etd tL2wW

JOHN F. HEIL Ill

CHIEF UNITED STATES DISTRICT JUDGE