McMahon

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

RICHARD MCMAHON, )

)

Plaintiff, )

)

vs. ) Case No. 25-CV-207-JFJ

)

1. CITY OF BROKEN ARROW, )

OKLAHOMA, a municipal corporation, )

2. BROKEN ARROW POLICE )

DEPARTMENT, )

3. MICHAEL FERGUSON, and )

4. UNKNOWN BROKEN ARROW )

POLICE OFFICERS, )

)

Defendants. )

OPINION AND ORDER

Before the Court is Plaintiff’s Motion for Leave to File First Amended Complaint (ECF

No. 21) (“Motion”). Defendants City of Broken Arrow and Broken Arrow Police Department

filed a joint objection to Plaintiff’s Motion (ECF No. 22). For reasons explained below, the Motion

is GRANTED IN PART and DENIED IN PART.

I. Procedural Background

Plaintiff Richard McMahon (“Plaintiff”) filed his Complaint (ECF No. 2) on April 25,

2025. Plaintiff alleged two separate incidents of constitutional violations against him involving

Sergeant Michael Ferguson (“Ferguson”) of the Broken Arrow Police Department (“BAPD”) and

other unnamed BAPD officers. The Court dismissed Ferguson without prejudice on August 13,

2025, due to Plaintiff’s failure to effect service on Ferguson by the required deadline or to seek

other relief. ECF No. 16. Defendants City of Broken Arrow (“City”) and BAPD each moved to

dismiss the Complaint on various grounds (ECF Nos. 8, 9). On November 7, 2025, the Court

dismissed the Complaint without prejudice to Plaintiff’s seeking leave to amend as to his claims

against Defendants City and Unknown Broken Arrow Police Officers. ECF No. 20. The Court

dismissed Plaintiff’s claims against BAPD with prejudice, because the Court found BAPD was

not a proper party to be sued. Id. at 15. The Court permitted Plaintiff to file a motion to amend

the Complaint “to reassert any claims dismissed herein without prejudice” by November 21, 2025.

Id. at 16-17.

On November 21, 2025, Plaintiff filed the Motion, attaching a proposed First Amended

Complaint (“FAC”). ECF No. 21. The FAC seeks to re-add Ferguson as a defendant, despite

Ferguson’s early dismissal from the case. Plaintiff also seeks to re-assert claims against City,

BAPD, and Unknown Broken Arrow Police Officers. ECF No. 21-1.

Plaintiff’s FAC includes more detailed factual allegations regarding the two incidents. In

addition to his originally asserted claims, Plaintiff added one new claim titled “Count V – 42

U.S.C. § 1983 – Municipal Liability (Monell)” against City, which provides further detail for the

basis of his claim for municipal liability against City. As in the original Complaint, Plaintiff asserts

claims in the FAC under 42 U.S.C. § 1983 against Defendants for (1) unreasonable seizure in

violation of Plaintiff’s Fourth Amendment rights (Count I); (2) excessive force in violation of

Plaintiff’s Fourth Amendment rights (Count II); (3) violation of Plaintiff’s due process rights under

the Fourteenth Amendment (Count III); (4) constitutional deprivations under the Fourth and

Fourteenth Amendments, which resulted from Defendants’ individual actions and the policies and

customs of City and BAPD (Count IV); and (5) Monell municipal liability by City, which resulted

from City’s deliberate indifference to Plaintiff’s constitutional rights through its policies, customs,

and failure to adequately train, supervise, and discipline its police officers, including Ferguson

(Count V).1 Plaintiff further asserts state-law claims against Defendants for (1) malicious

prosecution (Count VI); (2) intentional infliction of emotional distress (“IIED”); and (3)

negligence (Count VIII).2

In their joint objection, City and BAPD argue that leave to amend should be denied for

several reasons: (1) Plaintiff should not be permitted to re-add Ferguson as a defendant because

the time to serve Ferguson has long expired; (2) amendment would be futile as to BAPD, because

it lacks the capacity to be sued; and (3) amendment would be futile as to City, because Plaintiff’s

proposed First Amended Complaint still fails to adequately plead municipal liability against it.

II. Legal Standard - Rule 15(a)(2)

Under Federal Rule of Civil Procedure 15(a), once the time for filing an amended pleading

as a matter of course has expired, then “a party may amend its pleading only with the opposing

party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The court “should freely

give leave when justice so requires.” Id. It remains within the court’s discretion to grant or deny

leave to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). However, “[r]efusing leave to amend

is generally only justified upon a showing of undue delay, bad faith or dilatory motive, failure to

cure deficiencies by amendments previously allowed, or undue prejudice to the opposing party, or

futility of amendment, etc.” Castleglen, Inc. v. Resol. Tr. Corp., 984 F.2d 1571, 1585 (10th Cir.

1993) (citing Foman, 371 U.S. at 182). “The party contesting the motion to amend has the burden

1 The Court reads the FAC to assert a single “Count V” against City for municipal liability, even

though Plaintiff asserts Count V twice. The second “Count V” (FAC ¶¶ 54-58) is identical to

Count V alleged against City in the original Complaint.

2 As in the original Complaint, the FAC’s Count VIII appears to be an Oklahoma claim for

negligent training and supervision against City despite its title as a second IIED claim. ECF No.

21-1 ¶¶ 68-70. Although the Court discussed the unclear nature of Count VIII in its November 7,

2025, Opinion and Order, Plaintiff has not altered the title or content of this claim.

of proving that the amendment should be refused on one of these bases.” Ratzlaff v. The Commons,

No. CIV-23-1136-G, 2025 WL 392729, at *1 (W.D. Okla. Feb. 4, 2025) (quotation omitted).

III. Discussion

A. Court Denies Leave to Re-Add Ferguson as Defendant

In the November 7, 2025, Opinion and Order, the Court permitted Plaintiff to seek leave

to amend the Complaint “to reassert any claims dismissed herein without prejudice.” ECF No. 20

at 16-17. The Court did not grant express permission to re-add Ferguson as a defendant. The

Court dismissed Ferguson from the case on August 13, 2025, after Plaintiff failed to effect service

on Ferguson by the required deadline of July 25, 2025, or file a motion requesting an extension of

the time for service. ECF No. 16.

Plaintiff cites no authority indicating that the filing of an amended complaint permits

extension of the 90-day service period provided in Federal Rule of Civil Procedure 4(m) as to an

existing defendant. To the contrary, such time period “is not restarted by the filing of an amended

complaint except as to those defendants newly added in the amended complaint.” Bolden v. City

of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006). “This construction of the rule prevents the

plaintiff from repeatedly filing amended complaints to extend the time for service indefinitely.”

Id. (quotation omitted). Otherwise, a dilatory plaintiff could evade the rule’s time deadline “simply

by filing an amended complaint when it felt like effecting service.” Id. at 1148-49. Plaintiff also

has not sought to extend the time to serve Ferguson or attempted to explain his reasons for failing

to serve Ferguson within the time for service.

Because the time to serve Ferguson already expired before Plaintiff sought leave to amend

the Complaint, and Plaintiff did not seek to extend the service period as to Ferguson, the Court

denies leave to re-add Ferguson as a defendant in the case.

B. Court Denies Leave to Assert Claims Against BAPD

The FAC identifies BAPD as a defendant in the case caption, and the FAC refers to BAPD

throughout the allegations. As explained in the November 7, 2025, Opinion and Order, BAPD is

an improper party to this action, because it lacks the capacity to be sued. ECF No. 20 at 15. The

Court already dismissed BAPD with prejudice. Id. at 16. For this reason, the Court denies leave

to amend with respect to any claims asserted against BAPD.

C. Court Grants Leave to Assert Limited Federal Municipal Claims Against City

City argues the Court should deny leave to amend as to the claims against it based on

futility. A proposed amendment is futile when the claim, as amended, would be subject to

dismissal because the plaintiff “fails to allege facts that would allow the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Fields v. City of

Tulsa, 753 F.3d 1000, 1012-13 (10th Cir. 2014) (citation modified). “The futility question is

functionally equivalent to the question whether a complaint may be dismissed for failure to state a

claim.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). A claim should be dismissed

for failure to state a claim where the factual pleading does not allow the court to “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Rather, a plaintiff must allege “enough facts to state a claim to relief

that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

1. Pleading Requirements – Municipal Liability

Section 1983 liability may be imposed on a municipality such as City when a constitutional

violation is inflicted pursuant to a government policy or custom. Monell v. Dep’t of Soc. Servs. Of

City of New York, 436 U.S. 658, 694 (1978). A plaintiff seeking to prove municipal liability must

allege facts demonstrating three elements: “(1) official policy or custom, (2) causation, and (3)

state of mind.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir.

2013).

As to the first element, identifying a municipal policy “ensures that a municipality is held

liable only for those deprivations resulting from the decision of its duly constituted legislative body

or of those officials whose acts may fairly be said to be those of the municipality.” Bd. of Cnty.

Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403-04 (1997) (citing Monell, 436 U.S.

at 694). A municipal policy or custom may take any one of five forms:

(1) a formal regulation or policy statement; (2) an informal custom amounting to a

widespread practice that, although not authorized by written law or express

municipal policy, is so permanent and well settled as to constitute a custom or usage

with the force of law; (3) the decisions of employees with final policymaking

authority; (4) the ratification by such final policymakers of the decisions – and the

basis for them – of subordinates to whom authority was delegated subject to these

policymakers’ review and approval; or (5) the failure to adequately train or

supervise employees, so long as that failure results from deliberate indifference to

the injuries that may be caused.

Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (citation modified).

As to the second element, a plaintiff must plead that there is a “direct causal link between

the policy or custom and the injury alleged.” Id. (quotation omitted). See Haines v. Fisher, 82

F.3d 1503, 1507 (10th Cir. 1996) (explaining that the municipality’s official policy must be the

“moving force for the constitutional violation in order to establish the liability of a government

body under § 1983”) (citing Monell, 436 U.S. at 694). The challenged policy or practice must be

“closely related to the violation of the plaintiff’s federally protected right.” Schneider, 717 F.3d

at 770 (quotation omitted). “Therefore, it is only when the execution of the government’s policy

or custom inflicts the injury that the municipality may be held liable under § 1983.” Hollingsworth

v. Hill, 110 F.3d 733, 744 (10th Cir. 1997) (citation modified).

As to the third element, a plaintiff must allege that the facially lawful municipal action was

taken with “deliberate indifference as to its known or obvious consequences.” Schneider, 717 F.3d

at 770 (quoting Brown, 520 U.S. at 407). This standard is satisfied where 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.”

Id. at 771 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)). While “notice” is

most often shown by alleging a “pattern of tortious conduct,” in a “narrow range of circumstances,”

deliberate indifference may be found “if a violation of federal rights is a highly predictable or

plainly obvious consequence of a municipality’s action or inaction.” Id. (quoting Barney, 143 F.3d

at 1307).

2. Analysis

In the FAC, Plaintiff alleges two incidents that resulted in constitutional violations. First,

on July 28, 2023, Plaintiff reported to police that he had been assaulted and battered by a neighbor

(“first incident”). FAC ¶ 12. When Ferguson and other BAPD officers responded to the call at

Plaintiff’s residence, Plaintiff presented evidence to the officers corroborating his account of

assault. Id. ¶ 13. However, the BAPD officers accepted Plaintiff’s neighbor’s version of events

and disregarded Plaintiff’s evidence, demonstrating bias against Plaintiff. Id. An officer ordered

Plaintiff to “turn around,” but Plaintiff did not comply. Id. ¶¶ 14-15. As a result, the officer “used

force on Plaintiff on the porch, assaulted him, and arrested him for ‘resisting arrest,’ despite lacking

reasonable suspicion or probable cause to seize or arrest Plaintiff.” Id. ¶ 15.

Second, on May 29, 2024, Plaintiff alleges Ferguson and four other BAPD officers entered

and secured Plaintiff’s residence without a warrant, consent, or exigent circumstances, under the

pretext of a traffic incident, in which a vehicle was partially blocking a cul-de-sac (“second

incident”). Id. ¶¶ 17-18. Plaintiff alleges the officers used force “by slamming Plaintiff to the

ground, causing physical injury, and arrested him.” Id. ¶ 19. Ferguson allegedly stated on an

officer body camera prior to entering Plaintiff’s home that he hated Plaintiff, and that “[i]t would

give [him] great pleasure to take [Plaintiff] to jail tonight.” Id. ¶ 20. Plaintiff “spent the night in

jail and was released the next morning without charges.” Id. ¶ 21.

Plaintiff added new municipal allegations in the FAC against City under the header, “City

knowledge, review, ratification, and failure to train/supervise/discipline,” id. ¶¶ 23-34, and he

added a new “Count V” detailing his theories of Monell liability against City, see id. ¶¶ 50-53.3

Although difficult to discern, the Court construes the FAC as asserting the following theories of

municipal liability: (1) failure to adequately train and supervise officers on various Fourth

Amendment issues, thereby causing the first incident, id. ¶ 51; (2) ratification of unconstitutional

conduct and failure to train, supervise, and/or discipline officers on various Fourth Amendment

issues, thereby causing the second incident, see id. ¶¶ 23, 50-52; and (3) ratification and failure to

train, supervise, and/or discipline officers on various Fourth Amendment issues after the second

incident, see id. ¶¶ 27, 50-52.

a) Plaintiff Fails to Allege Basis for Monell Liability for First

Incident

Plaintiff seeks to hold City liable for the first incident based on City’s maintaining a custom

and practice of “discounting or ignoring exculpatory evidence presented by victim or complainants

on scene, which predictably results in unlawful seizures and arrests.” Id. ¶ 50. Plaintiff also, but

more vaguely, alleges a failure to train on excessive force prior to this incident. Id. ¶ 51.

Plaintiff has not adequately alleged facts to support a finding of any widespread custom or

practice that caused the first incident. Pleading an informal policy or custom requires that the

alleged misconduct was a “widespread practice that, although not authorized by written law or

3 As explained supra note 1, the FAC still includes the prior version of “Count V” from the original

Complaint, which the Court already found insufficiently pled. Now that the FAC and Count V

include additional facts and more detailed allegations, the Court will permit the FAC to be filed

including all allegations in both Counts V.

express municipal policy, is so permanent and well settled as to constitute a ‘custom or usage’ with

the force of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quotation omitted).

For a practice to be widespread, Plaintiff must allege other similar incidents occurring prior to the

first incident. See Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1290 (10th Cir. 2019)

(rejecting argument that deputy’s unprovoked attack on detainee in front of judge was sufficient

to infer existence of municipal custom or practice, where plaintiff alleged only one similar incident

of excessive force prior to his own injuries). See also City of Okla. City v. Tuttle, 471 U.S. 808,

823-24 (1985) (finding “[p]roof of a single incident of unconstitutional activity is not sufficient to

impose liability under Monell, unless proof of the incident includes proof that it was caused by an

existing, unconstitutional municipal policy, which policy can be attributed to a municipal

policymaker”). In the FAC, Plaintiff alleges no additional facts to show a widespread practice or

custom of constitutional violations via other similar events occurring prior to the first incident.

Nor he has pointed to any written policies that would support a finding of Monell liability.

To the extent Plaintiff seeks to hold City liable for the first incident on a “single-incident”

theory of municipal liability, Plaintiff’s allegations fail. Such liability may attach in a narrow

range of circumstances where a municipal policy or custom of deficient training causes an injury

that is “obvious” and “closely related,” and the municipality adopted the policy or custom with

“deliberate indifference” to the injury. Valdez v. Macdonald, 66 F.4th 796, 815, 816-17 (10th Cir.

2023).4 Here, Plaintiff failed to plead facts demonstrating that injuries flowing from the first

incident were the “obvious” result of a specific municipal policy or custom, or deficient training,

4 “Deliberate indifference” in this context requires satisfying a three-part test: (1) “the

municipality’s policymakers know to a moral certainty that their employees will confront a given

situation”; (2) “the situation presents the employee with a difficult choice of the sort that training

or supervision will make less difficult”; and (3) “the wrong choice will frequently cause the

deprivation of a citizen’s constitutional rights.” Id. at 817 (citation modified).

in the broad categories of failing to properly assess evidence during an on-scene investigation

and/or excessive force. Plaintiff’s allegations are insufficiently particular as to how officers were

inadequately trained or how his injuries from the first incident were an “obvious” consequence of

that lack of training. Cf. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1320 (10th Cir. 2002)

(reversing grant of summary judgment on single-incident § 1983 deliberate indifference claim that

county failed to train its officers on booking procedures for inmates with obsessive-compulsive

disorder, explaining that “given the frequency of the disorder, Davis County’s scant procedures on

dealing with mental illness and the prebooking officers’ apparent ignorance to [plaintiff’s] requests

for medication, a violation of federal rights is quite possibly a ‘plainly obvious’ consequence of

Davis County’s failure to train its prebooking officers to address the symptoms”) (quotation

omitted). Plaintiff may not hold City liable for the first incident under any theory of Monell

liability. Amendment to assert such liability would be futile.

b) Plaintiff Adequately Alleges Monell Liability for Second

Incident

Plaintiff alleges City ratified officers’ unconstitutional conduct by failing to take

disciplinary action against Ferguson or any other involved officer and failing to implement

“remedial training or policy revisions” after the first incident, despite Plaintiff’s complaint to

BAPD leadership and City. Id. ¶¶ 23, 28, 52. City argues this theory of liability fails, because

Plaintiff fails to identify specific action taken by specific policymaker(s) sufficient to demonstrate

ratification.

The Court rejects City’s contention and finds Plaintiff has adequately alleged City’s

liability for ratification/failure to train, supervise, or discipline Ferguson and the other officers

involved in the first incident. As to the first element, Plaintiff identifies the Broken Arrow Chief

of Police and/or City Manager as the final policymakers, and he alleges that those policymakers

ratified the wrongful arrest and excessive force used against Plaintiff by failing to discipline or

provide remedial training to Ferguson or the other officers involved in the first incident, even after

Plaintiff complained to BAPD leadership and City. The Court finds these allegations sufficiently

specific to satisfy the first element of municipal liability. Cf. London v. Beaty, 612 F. App’x 910,

914 (10th Cir. 2015) (finding conclusory allegations against city on Fourth Amendment claim

failed to meet Twombly standard, where plaintiff “wholly failed” to “identify [the city’s] policy-

makers and the specific actions they took that resulted in the deprivation of his fourth amendment

rights”).

The Court further finds Plaintiff adequately alleged that City’s ratification/failure to train,

supervise, or discipline after the first incident were the “moving force” behind the second incident.

“Rarely if ever is the failure of a police department to discipline in a specific instance an adequate

basis for municipal liability under Monell.” Schneider, 717 F.3d at 777 (citation modified).

However, in this case Plaintiff alleges two instances of similar alleged constitutional violations

involving Plaintiff, Ferguson, and other various BAPD officers at Plaintiff’s home. Plaintiff

alleges City should have imposed discipline on Ferguson and the other officers and/or required

further training or supervision of those officers after the first instance of excessive force and

wrongful arrest. Plaintiff allegedly complained to BAPD leadership and City after the first

incident, but City failed to take action to prevent another similar incident against Plaintiff. Less

than a year later, Ferguson and other BAPD officers allegedly committed essentially the same

constitutional violations against Plaintiff at his home, accompanied by Ferguson’s statement on

his body camera demonstrating animus against Plaintiff. In these circumstances, City’s failure to

discipline, supervise, or further train Ferguson or other involved officers after the first incident

could reasonably be deemed the cause of Plaintiff’s injuries from the second incident.

As to the “state of mind” element, the Court finds sufficient allegations that City had

“actual or constructive notice” that its failure to discipline Ferguson and the other involved officers

after the first incident was “substantially certain to result in a constitutional violation,” and it

“consciously or deliberately ch[ose] to disregard the risk of harm.” Schneider, 717 F.3d at 771.

Because both incidents involved at least Ferguson, and possibly other common BAPD officers,

and involved a similar set of circumstances at Plaintiff’s residence, the Court finds these

allegations, if proven, may fall into the “narrow range of circumstances” where the repeated

violations of constitutional rights was a “highly predictable or plainly obvious consequence” of

City’s failure to discipline or impose corrective action on Ferguson or the other officers involved

in the first incident involving Plaintiff. Id.

Plaintiff has sufficiently pled a factual basis for municipal liability against City based on

City’s actions or inactions leading to the second incident. See Cordova v. Aragon, 569 F.3d 1183,

1194 (10th Cir. 2009) (“A failure to investigate or reprimand might . . . cause a future violation by

sending a message to officers that such behavior is tolerated.”). The Court therefore grants leave

to amend to assert a Monell claim against City related to the second incident.5

c) Plaintiff Fails to Allege Municipal Liability Premised on City’s

Conduct After Second Incident

Plaintiff alleges that, following the second incident, City “ultimately terminated Ferguson’s

employment” but “did not discipline, retrain, reprimand, or otherwise impose corrective action on

any of the other four BAPD officers who participated in the May 29, 2024 warrantless home entry,

use of force, and arrest.” Id. ¶¶ 26-27. To the extent Plaintiff alleges municipal liability based on

5 To the extent Plaintiff intends to assert any “widespread” custom as the moving force behind the

second incident, the Court rejects this theory of liability for the same reasons explained above in

Part III.C.2(a). Plaintiff has made no allegations of any widespread practices. Instead, he has

survived City’s objections to the Motion based on City’s alleged failures in response to Plaintiff’s

complaints regarding Ferguson and the other officers who participated in the first incident.

“ratification” of officer conduct after this second incident, City cannot be held liable under Monell

for such practices. “[B]asic princip[les] of linear time prevent [the court] from seeing how conduct

that occurs after the alleged violation could have somehow caused that violation.” Cordova, 569

F.3d at 1194. See also Schwartz for Est. of Finn v. City & Cnty. Of Denver, 2023 WL 1879305,

at *3 (D. Colo. Feb. 10, 2023) (rejecting “post-conduct” ratification theory, and collecting cases

explaining ratification-based municipal liability claims require that any ratification must precede

the alleged constitutional violation to meet the causation element). Subsequent conduct may be

relevant circumstantial evidence that City routinely encouraged similar illegal conduct but does

not itself constitute a “causal connection” in this case. See Cordova, 569 F.3d at 1194. Plaintiff

may not assert this theory of Monell liability against City. Amendment to assert such liability

would be futile.

D. Court Denies Leave to Assert State-Law Claims for Malicious Prosecution and

IIED

1. Malicious Prosecution (Count VI)

Although City does not raise specific objections to Plaintiff’s re-alleged Oklahoma claim

for malicious prosecution, the FAC does not allege any additional facts that would overcome City’s

immunity from this claim.6 Indeed, the wording of this claim in the FAC appears to be identical

to that of the Complaint, despite the Court’s dismissal of this claim on immunity grounds. As

explained in the November 7, 2025, Opinion and Order, a malicious prosecution claim requires

proof of five essential elements: “1) defendant's filing a former action, 2) its successful termination

in favor of plaintiff, 3) defendant’s want of probable cause for pressing the former action against

6 Although the FAC does not identify the basis for liability regarding this malicious prosecution

claim, the parties appeared to agree in prior briefing that this claim sounds in Oklahoma law, rather

than federal § 1983 liability, and Plaintiff does not allege otherwise in the FAC. Therefore, the

Court addresses Count VI as a state-law claim.

plaintiff, 4) the presence of malice in defendant’s conduct, and 5) damages.” Lierly v. Tidewater

Petroleum Corp., 139 P.3d 897, 903, as corrected (Okla. 2006). Plaintiff’s tort claim for malicious

prosecution against City would fall under the Oklahoma Governmental Tort Claims Act

(“OGTCA”), which “is the exclusive remedy for an injured plaintiff to recover against a

governmental entity in tort.” Nail v. City of Henryetta, 911 P.2d 914, 917 (Okla. 1996).

Under Oklahoma law, “a municipality is not liable for any act or omission of an employee

acting outside the scope of employment.” Id. at 916. See Okla. Stat. tit. 51, § 153(A) (stating that

a political subdivision shall not be liable under the OGTCA “for any act or omission of an

employee acting outside the scope of the employee’s employment”). The “scope of employment”

is defined under the OGTCA as the “performance by an employee acting in good faith within the

duties of the employee’s office or employment or of tasks lawfully assigned . . . .” Okla. Stat. tit.

51, § 152(12). If the employee acted “maliciously, or in bad faith,” an employee could not be

acting within the scope of employment. Nail, 911 P.2d at 916. Because a malicious prosecution

claim includes “elements of bad faith,” a municipality is immune from liability under the OGTCA.

Id. Correspondingly, if the employee “was acting in good faith and hence within the scope of

employment,” then the plaintiff “cannot prove his case because he cannot establish the necessary

element of malice.” Parker v. City of Midwest City, 850 P.2d 1065, 1068 (Okla. 1993). See Wade

v. City of Tulsa, No. 19-CV-120-JED-FHM, 2019 WL 3769631, at *9 (N.D. Okla. Aug. 9, 2019)

(“Oklahoma courts have determined that claims with malice as a necessary element – such as

malicious prosecution claims – may not be maintained against a municipality under the OGTCA

because the malice element necessarily negates the good faith necessary to showing an employee

acted in the scope of employment”) (collecting cases).

Given these constraints, City is necessarily immune from suit for Plaintiff’s malicious

prosecution claim. Plaintiff alleges Ferguson acted “outside the bounds of lawful police

procedure,” “without probable cause,” and “with malice” in initiating criminal proceedings against

Plaintiff. FAC ¶¶ 60-61. City is still immune from this malicious prosecution claim, and

amendment to add this claim would be futile. Plaintiff did not attempt to cure these deficiencies

via amendment. Therefore, the Court denies leave to amend to include this claim.

2. IIED (Count VII)

Although City does not raise objections to Plaintiff’s re-alleged Oklahoma claim for IIED,

amendment of this claim against City is likewise futile, because City is immune from this claim.

Plaintiff did not change the wording of this this claim or add any factual allegations to support

such a claim against City, despite the Court’s prior dismissal of this claim. “To establish a cause

of action for intentional infliction of emotional distress, a plaintiff must prove extreme and

outrageous conduct done intentionally or recklessly by the defendant which resulted in severe

emotional distress in the plaintiff.” Ridings v. Maze, 414 P.3d 835, 839 (Okla. 2018). Plaintiff

alleges that Ferguson’s conduct in using excessive force against Plaintiff during both arrests was

“outrageous” and “exceeds all bounds of decency and is utterly intolerable in a civilized society.”

FAC ¶ 65.

As explained in the November 7, 2025, Opinion and Order, City is immune from

intentional torts committed by its employees acting outside the scope of employment. See Okla.

Stat. tit. 51, § 153(A). As explained above, “a governmental employee only acts within the scope

of his employment when he acts in good faith.” McMullen v. City of Del City, 920 P.2d 528, 530

(Okla. Civ. App. 1996). However, “[t]here is no way to prove a claim for [IIED] if the defendant

has acted in good faith.” Id. at 531. See Byrd v. Ind. Sch. Dist. No. 8 of Tulsa Cty., No. 23-CV-

00404-CDL, 2024 WL 4350800, at *14 (N.D. Okla. Sept. 30, 2024) (finding school district

immune from Oklahoma IIED claim under OGTCA, “because such a claim necessarily excludes

good faith conduct, and an employee committing that tort could not be considered to have been

acting within the scope of employment for purposes of the OGTCA”) (citing McMullen, 920 P.2d

at 531, Shaw v. City of Okla. City, 380 P.3d 894, 897 (Okla. Civ. App. 2016)). Therefore, for the

same reason City is immune from the malicious prosecution claim, City is also immune from the

IIED claim. The Court denies leave to amend to include this claim.

E. Court Denies Leave to Assert State-Law Claim for Negligent Training and

Supervision (Count VIII)

City does not specifically object to Plaintiff’s claim for negligent training and supervision.

As explained above, although titled as a second IIED claim, Count VIII appears to be an Oklahoma

claim for negligent training and supervision against City. FAC ¶¶ 68-70. The Court identified

this apparent mismatch in the November 7, 2025, Opinion and Order, but Plaintiff has not amended

this claim to clarify his intent. Under this claim, Plaintiff alleges “Defendants breached this duty

[to properly train and discipline employees, including Ferguson] by failing to monitor, control,

train and supervise Sgt. Ferguson, despite clear evidence and constructive notice of his propensity

for excessive force, biased decision-making, and disregard for constitutional rights.” FAC ¶ 69.

The Court previously dismissed this claim as insufficiently pled. See ECF No. 20 at 14. Because

the Court will permit amendment of federal claims against City based on additional factual

allegations, the Court re-examines this claim for sufficiency of pleading.

As with Plaintiff’s other Oklahoma claims against City, the OGTCA provides the exclusive

remedy for a “negligent training and supervision” claim against City. See Nail, 911 P.2d at 917;

Okla. Stat. tit. 51, § 153(B). Although City does not raise the issue, the Court finds that City is

immunized from liability for this claim based on the OGTCA’s “discretionary function”

exemption. The OGTCA exempts a municipality from liability for any claim that results from the

“[p]erformance of or the failure to exercise or perform any act or service which is in the discretion

of the state or political subdivision or its employees.” Okla. Stat. tit. 51, § 155(5). To identify

“discretionary” decisions, Oklahoma courts hold that “initial policy level or planning decisions are

considered discretionary and hence immune, whereas operational level decisions made in the

performance of policy are considered ministerial and not exempt from liability.” Nguyen v.

Oklahoma, 788 P.2d 962, 964-65 (Okla. 1990).

The Oklahoma Supreme Court has not addressed the question of whether a municipality’s

failure to train, supervise, monitor, and/or control its employees falls under the § 155(5)

discretionary function exception. See Langkamp v. Mayes Emergency Servs. Tr. Auth., No. 16-

CV-0676-CVE-FHM, 2017 WL 875483, at *4 (N.D. Okla. Mar. 3, 2017), motion for relief from

judgment granted, No. 16-CV-0676-CVE-FHM, 2017 WL 1102650 (N.D. Okla. Mar. 23, 2017).

However, the “clear weight of authority” indicates that such decisions are actions that implicate a

municipality’s “policy and planning functions and therefore fall under the discretionary function

exemption of § 155(5).” Id. (collecting cases supporting finding that political entity’s hiring,

training, supervision, monitoring, and retention decisions fall under “discretionary” function

exemption of § 155(5)). See Manning v. City of Tulsa, No. 17-CV-336-EFM-SH, 2023 WL

11643939, at *8 & n.52 (N.D. Okla. Feb. 9, 2023) (same); White v. City of Tulsa, Okla., No. 13-

CV-128-TCK-PJC, 2013 WL 4784243, at *5 (N.D. Okla. Sept. 5, 2013) (finding negligence claim

based on city’s acts of “training officers, supervising officers, and conducting investigations of

citizen complaints” was barred by discretionary function exemption of OGTCA).

Based on Plaintiff’s allegations of negligence against City in the FAC, the Court concludes

that these allegations fall within City’s discretionary policy and planning functions, which are

exempted from OGTCA liability. Therefore, the Court denies leave to amend to include the claim

labeled as Count VIII.

F. Court Grants Leave to Include Defendant(s) “Unknown Broken Arrow Police

Officers”

Defendant(s) “Unknown Broken Arrow Police Officers” remain unidentified defendants in

this case. Pursuant to Federal Rule of Civil Procedure 10(a), a caption of a complaint must contain

the names of all parties. However, the Court will allow Plaintiff a period of discovery to uncover

the identities of the unknown BAPD officers. As a result, the Court permits amendment to include

defendant(s) “Unknown Broken Arrow Police Officers.”

IV. Conclusion

For the reasons detailed above, Plaintiff’s Motion for Leave to File First Amended

Complaint (ECF No. 21) is GRANTED IN PART and DENIED IN PART. Specifically:

• Leave to amend is DENIED as to Plaintiff’s claims against Defendants (1) Michael

Ferguson and (2) Broken Arrow Police Department. These entities shall not be

included in the FAC case caption.

• Leave to amend is DENIED as to Plaintiffs’ claims for (1) Malicious Prosecution

(Count VI), (2) Intentional Infliction of Emotional Distress (Count VII), and (3)

“Intentional Infliction of Emotional Distress” (Count VIII) (interpreted by the

Court as a claim for negligent training and supervision). These claims shall not be

included in the FAC.

• Leave to amend is GRANTED as to federal claims against Defendants (1) City of

Broken Arrow (Count V) and (2) Unknown Broken Arrow Police Officers (Counts

I-V), with limits on theories of municipal liability as stated above. Plaintiff may

file “Count V” as it is currently written in the proposed FAC. However, this

Opinion and Order controls the theories of municipal liability that will proceed to

the summary judgment stage.

Plaintiff is ORDERED to file a First Amended Complaint that complies with this Opinion

and Order no later than March 9, 2026.

SO ORDERED this 2nd day of March, 2026.

an :

JQDIF. JAY AGISA RATE JUDGE

UNITED STATES DISTRICT COURT

19