Neuendorf

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

NIKKI NEUENDORF, )

)

Plaintiff, )

)

v. ) Case No. 25-CV-0086-CVE-MTS

)

GREG FAXON, Individually, and in his )

capacity as a City of Catoosa police officer; )

JAMES KINSINGER, Individually, and in his )

capacity as a City of Catoosa police officer; and )

CITY OF CATOOSA, OKLAHOMA, )

)

Defendants. )

OPINION AND ORDER

Before the Court are two motions to dismiss, one for failure to state a claim filed by

defendants Greg Faxon and James Kinsinger (Dkt. # 22), and one for lack of jurisdiction and failure

to state a claim filed by defendant the City of Catoosa, Oklahoma (Dkt. # 23). Plaintiff brought this

action alleging five claims resulting from her arrest by Sergeant Greg Faxon and Officer James

Kinsinger, who are law enforcement officials with the Catoosa Police Department. Dkt. # 2; Dkt.

# 31. Plaintiff alleges that during the course of her arrest for public intoxication, for which charges

were later dismissed, both defendant officers placed her arms behind her back, and together they

jerked both of her arms upwards to place her in handcuffs, breaking her right humerus and causing

her pain and injuries for which she has had extensive surgery. Dkt. # 2, ¶ 16. Plaintiff argues that

she was refused medical attention until an unreasonable length of time after she had suffered the

injury. Id. ¶ 19. Plaintiff now alleges five claims: one claim for violations of 42 U.S.C. § 1983

against all defendants (count one); one claim for common law false arrest against all defendants

(count two); one claim for negligence against Catoosa (claim three); one claim for intentional

infliction of emotional distress by extreme and outrageous conduct against the defendant officers

(count four); and one claim of assault and battery against the defendant officers (count five). Dkt.

# 31, ¶¶ 13-32. The defendant officers moved to dismiss plaintiff’s complaint on the ground that

plaintiff fails to state a claim upon which relief may be granted in that she fails to allege sufficient

facts as to both her § 1983 claim and state law tort claims. Dkt. # 22, at 12-27. They also argue that

even if plaintiff states a valid claim on any of the alleged counts, the defendant officers are entitled

to qualified immunity and are statutorily immune from suit in their official capacities for the state

law tort claims. Id. at 20-22. Catoosa also moved to dismiss plaintiff’s complaint under Federal

Rule of Civil Procedure 12(b)(6) in that she fails to state a claim against the city. Dkt. # 23, at 10-22.

Moreover, even if plaintiff is found to have made a valid state law tort claim against Catoosa, it also

asserts that this Court lacks subject-matter jurisdiction to consider plaintiff’s state law tort claims

pursuant to Federal Rule of Civil Procedure 12(b)(1) because her claims are barred by the Oklahoma

Governmental Tort Claims Act (“OGTCA”). Id. at 17-20.

I.

On March 12, 2023, plaintiff was arrested for public intoxication and resisting arrest. Dkt.

# 2, ¶ 15. Sergeant Faxon and Officer Kinsinger were dispatched to a residence in Catoosa where

plaintiff claims she resided with her parents. Id. ¶ 22. After the officers arrived at the residence they

spoke with plaintiff while she was standing on her parents’ property. Id. Plaintiff alleges that both

defendant officers “forced her to move off her private property and across the street onto public

property, so they could arrest her for public drunk.” Id. Once she was on public property, both

defendant officers placed plaintiff under arrest for public intoxication, handcuffing her and then

“jerk[ing] both of her arms up high enough her hands were near her neck, [which] . . . broke her right

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humerus/arm and [caused her to] cr[y] out in pain.” Id. ¶ 16. Plaintiff states that although she

“cried out in pain and told [Sergeant] Faxon and [Officer] Kinsinger they had broken her arm, they

refused to take off the handcuffs.” Id. ¶ 17. Despite her pleas, they “left her on the ground, with

her hands cuffed behind her” and “refused to get her medical care.” Id.

Following plaintiff’s arrest, she underwent surgery for a broken bone, which required the

installation of two plates and fourteen screws in her arm, and she experienced lasting nerve damage

that she asserts resulted from the officers’ actions during her arrest. Id. ¶ 16. On February 2, 2024,

plaintiff submitted a tort claim notice to Catoosa, providing formal notice of her claims against the

city. Dkt. # 23-2, at 3-4. On February 16, 2024, plaintiff filed suit against all three defendants in

Rogers County District Court. Dkt. # 23-3, at 1-2. On June 18, 2024, the charges against plaintiff

for public intoxication and resisting arrest were dismissed with costs. Dkt. # 22-1, at 2; Dkt. # 23-2,

at 2. Plaintiff alleges that neither defendant officer was ever “disciplined []or punished in any way

for breaking . . . [p]laintiff’s arm.” Dkt. # 2, ¶ 18. Plaintiff filed this action on February 22, 2025.

Dkt. # 1. On April 16, 2025, both defendant officers filed a motion to dismiss for failure to state a

claim. Dkt. # 22. On April 21, 2025, Catoosa filed a motion to dismiss. Dkt. # 23. Plaintiff

responded to both motions (Dkt. # 25; Dkt. # 34), and all three defendants replied (Dkt. # 35; Dkt.

# 38). Plaintiff also filed a notice of supplemental authority, seeking to draw the Court’s attention

to the subsequently-decided case, Jolliff v. Rogers County Sheriff’s Department, No. 24-CV-0065-

JCG-SH, 2025 WL 1570005 (N.D. Okla. June 3, 2025). Dkt. # 41. To that notice, defendants

responded (Dkt. # 42), plaintiff replied (Dkt. # 43), and, with the Court’s leave, defendants filed a

sur-reply (Dkt. # 48).

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II.

A. Motion to Dismiss Under 12(b)(6)

When a party moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must

determine whether the claimant has stated a claim upon which relief can be granted. To survive a

motion under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Tenth Circuit

has interpreted the plausibility requirement to mean that if the allegations contained in a complaint

“are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs

‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v. Okla. ex.

rel. Dep’t of Hum. Servs., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at

570). At the motion to dismiss stage, the allegations must “be enough that, if assumed to be true,

the plaintiff plausibly (not just speculatively) has a claim to relief.” Id. (footnote omitted). Put

differently, for a claim to survive a Rule 12(b)(6) motion, there must be “more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

However, “mere ‘labels and conclusions’ and ‘a formulaic recitation of the elements of a cause of

action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim.”

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550

U.S. at 555); see also Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976) (“A motion to dismiss

under Fed. Rules Civ. Proc., rule 12(b) admits all well-pleaded facts in the complaint as

distinguished from conclusory allegations.”).

“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the

parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient

to state a claim for which relief may be granted.” Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.

2006) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.

1999)). The facts alleged “must be enough to raise a right to relief above the speculative level, on

the assumption that all of the complaint’s allegations are true (even if doubtful in fact).” Twombly,

550 U.S. at 555 (citation omitted) (citing 5 WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE

§ 1216 (3d ed. 2004)). For the purposes of making a dismissal determination, a court must accept

as true all well-pleaded allegations in the complaint and construe the allegations in the light most

favorable to the claimant. Iqbal, 556 U.S. at 678-79.

B. Motion to Dismiss Under 12(b)(1)

Rule 12(b)(1) allows a party to raise the defense that the court lacks subject-matter

jurisdiction over some or all of a plaintiff’s claims. “Federal courts are courts of limited jurisdiction,”

empowered to hear “only those cases . . . entrusted to them under a jurisdictional grant by Congress.”

Henry v. Off. of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994). It is the “party invoking

federal jurisdiction [who] bears the burden of establishing its existence.” Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 104 (1998). The Tenth Circuit has recognized two main forms of

challenges under Rule 12(b)(1): “The moving party may (1) facially attack the complaint's

allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained

in the complaint by presenting evidence to challenge the factual basis upon which subject matter

jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.

2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). In the former case, a court

reviews the facts alleged in the complaint as true, akin to the standard applied to a Rule 12(b)(6)

motion. Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). By contrast, in the latter case,

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a court “may not presume the truthfulness of the complaint’s factual allegations,” and it is afforded

“wide discretion” to consider evidence extrinsic to the complaint to determine whether it maintains

subject-matter jurisdiction. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Unlike a

facial attack, a factual attack permits the court to refer to extrinsic evidence in reaching its

determination without converting the motion to a Rule 56 motion. Id, The party challenging

Jurisdiction may “challenge the substance of a complaint's jurisdictional allegations in spite of its

formal sufficiency by relying on affidavits or any other evidence properly before the court.” New

Mexicans for Bill Richardson v. Gonzales, 64 F.4th 1495, 1499 (10th Cir. 1995).

C. Consideration of Extrinsic Evidence

When a court relies on material outside of the pleadings before it, it is obligated to treat a

12(b)(6) motion as a motion for summary judgment, and failure to do so amounts to reversible error.

Foremaster v. City of St. George, 882 F.2d 1485, 1491 (10th Cir. 1989); Torres v. First State Bank

of Sierra Cnty., 550 F.2d 1255, 1257 (10th Cir. 1977); Becher v. United Healthcare Servs., 374 F.

Supp. 3d 1102, 1106 (D. Kan. 2019). It is for this reason that a court deciding a motion to dismiss

is typically unable to consider matters beyond the four corners of the complaint. Tal v. Hogan, 453

F.3d 1244, 1264 n.24 (10th Cir. 2006); Fuqua v. Santa Fe Cnty. Sheriff's Off, 157 F.4th 1288, 1297

(10th Cir. 2025). In this case, the parties have attached to their motions, responses, and replies,

various types of extrinsic evidence of which they ask the Court to take judicial notice. See, e.g., Dkt.

# 22, at 19 (defendants Sergeant Faxon and Officer Kinsinger seeking judicial notice of the docket

sheet from the related criminal proceeding, Dkt. # 22-1, and an affidavit by Officer Kinsinger, Dkt.

# 22-2); Dkt. # 23, at 18 (defendant Catoosa seeking judicial notice of the related criminal

proceeding, Dkt. # 23-1, plaintiff's tort claim notice to the city, Dkt. # 23-2, the docket sheet from

plaintiff's related state court claim, Dkt. # 23-3, and the same affidavit by Officer Kinsinger, Dkt.

# 23-4); Dkt. # 26 (plaintiff filing a notice of conventional filing containing a document that she

styles as Dkt. # 25-1, a flash drive video of footage created by Officer Kinsinger’s body-worn

camera); Dkt. # 34-1 (plaintiff attaching a Rule 56(d) affidavit by plaintiff's counsel).

1. Extrinsic Evidence Supporting and Rebutting the Rule 12(b)(6) Motions

Despite this general bar on a court’s consideration of extrinsic evidence at the motion to

dismiss stage, a court may take judicial notice of certain facts without treating the motion to dismiss

as a motion for summary judgment. Tal, 453 F.3d at 1264 n.24. Judicial notice of certain facts is

permitted so long as those facts are “generally known within the trial court’s territorial Jurisdiction”

or “can be accurately and readily determined from sources whose accuracy cannot be reasonably

questioned” and are therefore “not subject to reasonable dispute.” FED. R. EVID. 201(b); Fuqua, 157

F.4th at 1298. Judicial notice is appropriate when “a party requests it and the court is supplied with

the necessary information.” Fuqua, 157 F.4th at 1298 (quoting FED. R. EVID. 201(c)(2)). Documents

of which a court takes judicial notice “may only be considered to show their contents, not to prove

the truth of matters asserted therein.” Tal, 453 F.3d at 1265 n.24 (quoting Oxford Asset Mgmt., Ltd.

v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)). Here, all defendants request that the Court take

judicial notice of the related criminal docket sheet in Oklahoma v. Neuendorf, No. CM-2023-249

(Okla. Rogers Cnty. Jan. 29, 2025) and have attached a copy of it to their motions. Dkt. # 23, at 8

n.1; Dkt. #22, at 11 n.2. Federal courts routinely “take notice of proceedings in other courts, both

within and without the federal judicial system, if those proceedings have a direct relation to matters

at issue.” St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.

1979); see also Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010). On these bases, and because

plaintiff’s complaint relates directly to the underlying criminal docket sheet, the Court takes judicial

notice of what is shown in the Rogers County District Court docket in Oklahoma v. Neuendorf, No.

CM-2023-249 (Okla. Rogers Cnty. Jan. 29, 2025).

Next, defendants Sergeant Faxon and Officer Kinsinger ask the Court to take judicial notice

of an affidavit of Officer Kinsinger. Dkt. # 22, at 18-20 (citing Dkt. # 22-2). Defendants argue that

the affidavit relates to plaintiff’s arrest, which is central to her claim and therefore incorporated into

Oklahoma v. Neuendorf. Id. at 19. On this point, defendants misstate the law as to what a court may

consider in making its findings on a motion to dismiss. As discussed above, judicial notice is

appropriate for facts that are “generally known within the trial court’s territorial jurisdiction” or “can

be accurately and readily determined from sources whose accuracy cannot be reasonably questioned”

and are therefore “not subject to reasonable dispute.” FED. R. EVID. 201(b); Fuqua, 157 F.4th at

1298. A defendant officer’s affidavit outlining his bases for determining that there was probable

cause for an arrest, offered in a case in which the existence of probable cause is at issue, fits squarely

into the definition of “subject to reasonable dispute.” To be sure, judicial notice is inappropriate in

this instance.

Besides judicial notice, the bar on a court’s consideration of documents beyond the complaint

at the motion to dismiss stage has three exceptions recognized in the Tenth Circuit; in deciding a

motion to dismiss, a Court may also consider “documents that a plaintiff (1) attaches to [his]

complaint; (2) incorporates by reference in [his] complaint; or (3) refers to in [his] complaint that

are central to [his] complaint and indisputably authentic.” Fuqua, 147 F.4th at 1297 (alterations in

original) (quoting Cuervo v. Sorenson, 112 F.4th 1307, 1312 (10th Cir. 2014)). Although the

affidavit may relate to plaintiff’s arrest and to certain entries in the criminal docket of which the

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court takes judicial notice (but does not consider the truth of any facts asserted therein), the

complaint neither has attached to it, nor incorporates by reference, nor centrally relies upon, nor

references Officer Kinsinger’s affidavit. See Dkt. # 2. Simply put, the affidavit is central not to

plaintiff’s claims but rather to defendants’ theories of defense, which is not a valid exception to the

bar on extrinsic evidence at the motion to dismiss stage. See Burke v. Holdman, 750 F. App’x 616,

522-23 (10th Cir. 2018) (unpublished table opinion);1 United States ex rel. Daron Street, M.D. v.

Genentech, Inc., No. 17-CV-293-GKF-JFJ, 2024 WL 1143513, at *8 (N.D. Okla. Mar. 14, 2024);

Becher, 374 F. Supp. 3d at 1105 (“At the motion to dismiss stage, the court cannot properly consider

extrinsic evidence that isn't central to a plaintiff's claim. This is the rule even if the extrinsic

evidence is central to the defendant’s ‘theories of defense.’”); Tucker v. Allstate Ins. Co., No. 25-

1267-BGS, 2026 WL 110398, at *2 (D. Kan. Jan. 14, 2026). Because judicial notice is inappropriate

and none of the exceptions recognized in the Tenth Circuit applies, the Court does not consider or

base its findings on any facts contained in Officer Kinsinger’s affidavit in reaching its determination

as to the motions to dismiss before it.

Next, in her responses to defendants’ motions, plaintiff both attaches and makes reference

to video footage from a body-worn camera worn by Officer Kinsinger that was recording during

plaintiff’s arrest. See, e.g., Dkt. # 25, at 9-13, 22, 25 n.7; Dkt. # 26; Dkt. # 34, at 7-9, 12, 14, 18, 24,

26, 28, 32. Plaintiff’s original complaint does not explicitly reference or include as an attachment

the video footage; however, as the Court has previously observed, plaintiff states that she recites in

her complaint the events recorded in the video. Dkt. # 30, at 1; Dkt. # 29, at 1. Although a court

1 Unpublished decisions are not precedential, but they may be cited for their persuasive value.

See FED. R. APP. 32.1; 10TH CIR. R. 32.1.

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may consider body-worn camera video in reaching its conclusions on a motion to dismiss without

converting it to a motion for summary judgment, the Tenth Circuit has warned that in the context

of “dash- and body-camera videos,” the contents may be “subject to reasonable dispute,” such that

the Court would be in a position to “weigh evidence and make factual findings,” which is wholly

inappropriate when ruling on a motion to dismiss.” Fuqua, 157 F.4th at 1299. At this stage, the

Court’s central role remains to “assess whether the plaintiff’s complaint is legally sufficient to state

a claim for which relief may be granted”; therefore, it “assume[s] the truth of the plaintiff’s factual

allegations” contained within the four corners of the complaint and finds that it need not take judicial

notice of the body-worn camera footage offered by plaintiff. Id. To the extent that plaintiff’s

responses to the motions before the Court contain facts not alleged in her complaint, the Court

“confin[es] [its] review to the allegations of the complaint,” disregarding new factual allegations

introduced first in her response to defendants’ motions to dismiss. Jojola v. Chavez, 55 F.3d 488,

494 (10th Cir. 1995) (alterations in original) (quoting Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1566

(10th Cir. 1993)).

Finally, attached to plaintiff’s response is a Rule 56(d) affidavit of her attorney. Dkt. # 34-1.

Therein, counsel requests that the pending motions to dismiss (Dkt. # 22; Dkt. # 23) “be held in

abeyance and he be allowed discovery and to supplement the responses to the pending motion[s]

after discovery is completed.” Id. at 3. Catoosa raises the argument that this should be disregarded,

as unsuitable for a response to a Rule 12(b)(6) motion to dismiss, as Rule 56 relates to summary

judgment, which it has not moved for at this time. Dkt. # 38, at 10 n.5. On this point, the Court

agrees that consideration of any facts asserted in the affidavit are inappropriate for it to consider at

this stage. The affidavit is not judicially noticeable nor is it attached to plaintiff’s complaint,

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referenced in her complaint, or indisputably authentic and central to her complaint. See Fuqua, 147

F.4th at 1297.

The amount and scope of evidence presented by the parties leads the Court to conclude that

this is a hybrid case. The Court is able to rule on the motions to dismiss as to several of plaintiff’s

claims based solely on the arguments before it and the sufficiency of plaintiff’s complaint. However,

as to the remaining claims, it is clear from the briefing on defendants’ motions to dismiss that the

parties intend for the Court to consider documents extrinsic to the plaintiff’s complaint in ruling on

the motions. Upon review of the arguments properly raised, as to those remaining claims, the Court

finds it necessary to consider material outside the pleadings in ruling on defendants’ motions to

dismiss. Therefore, except as to the claims discussed below, which the Court dismisses on the basis

of the sufficiency of the complaint and the arguments before it, the Court will treat defendants’

motions on the remaining claims as motions for summary judgment under Rule 56. See Fed. R. Civ.

P. 12(d); Paper, Allied-Indus., Chem & Energy Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d

1258, 1292 (10th Cir. 2005).

2. Extrinsic Evidence Supporting and Rebutting Subject-Matter Jurisdiction

Unlike a Rule 12(b)(6) motion, in the context of a Rule 12(b)(1) motion for lack of

subject-matter jurisdiction, when a party facially attacks the facts on which subject-matter

jurisdiction is based, a court is at liberty to consider and weigh evidence extrinsic to the pleadings

in order to satisfy itself as to the existence of its jurisdiction over the case. Holt, 46 F.3d at 1003;

Tafoya v. U.S. Dep’t of Just., 748 F.2d 1389, 1390 (10th Cir. 1984) (“Insofar as subject matter

jurisdiction is concerned, it has long been recognized that a federal court must, sua sponte, satisfy

itself of its power to adjudicate in every case and at every stage of the proceedings and the court is

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not bound by the acts or pleadings of the parties.”). Catoosa2 factually challenges plaintiff’s claim

that she “has fully complied with the procedural requirements and time limitations of presenting a

claim under the [OGTCA],” Dkt. # 2, ¶ 5, arguing that because plaintiff failed “to comply with the

OGTCA’s mandatory notice prerequisites prior to filing her [state court] lawsuit, this Court’s

jurisdiction is not invoked,” Dkt. # 23, at 18-19. In support of its argument, Catoosa relies on and

attaches to its motion the following evidence supporting its challenge to plaintiff’s ability to establish

subject-matter jurisdiction pursuant to the OGTCA: (1) plaintiff’s tort claim notice, and (2) the

docket sheet from plaintiff’s state court lawsuit. Dkt. # 23, at 18 (citing Dkt. # 23-2; Dkt. # 23-3).

Because Catoosa’s challenge to plaintiff’s ability to establish subject-mater jurisdiction is a factual

attack on the Court’s ability to exercise its jurisdiction, the Court will consider this extrinsic

evidence and will refrain from presuming the truthfulness of the allegations contained in her

complaint regarding her compliance with the jurisdictional statute at issue.

III.

Before the Court are two motions to dismiss. In both motions, defendants assert that plaintiff

fails to state a claim upon which relief may be granted as to all of her claims and therefore they merit

dismissal under Federal Rule of Civil Procedure 12(b)(6). Dkt. # 22, at 12-26; Dkt. # 23, at 10-22.

With respect to plaintiff’s claim arising under § 1983 claim (claim one), the defendant officers

invoke the doctrine of qualified immunity and assert that plaintiff has failed to meet her burden on

2 The defendant officers also raise an argument under the OGTCA in their motion to dismiss;

however, their arguments differ from Catoosa’s as they raise those arguments under Rule

12(b)(6) not 12(b)(1). Dkt. # 22, at 22-23. However, even in the absence of a motion to

dismiss for lack of subject-matter jurisdiction, the Court retains an obligation to verify its

jurisdiction and can dismiss a matter at any time once it learns that it lacks such jurisdiction

under Rule 12(h)(3).

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both required showings to overcome this doctrine. Dkt. # 22, at 12-22. First, plaintiff has failed

show that there was a violation of a constitutional right, and even if the she has met her burden on

that first showing, id. at 12-20, she has not sufficiently shown that the constitutional violation or

violations were clearly established at the time of her arrest, id. at 20-22. Also with respect to the

§ 1983 claims, Catoosa argues that plaintiff failed to plead sufficient facts to show that an official

committed a constitutional violation on the same grounds as the defendant officers argue, Dkt. # 23,

at 8, and even if plaintiff did meet her burden as to the first showing, she failed to allege sufficient

facts to show that she was harmed by a city policy, custom, or practice. Dkt. # 23, at 12-17.

With respect to the state law tort claims, Catoosa seeks dismissal of the two state law tort

claims against it, for false arrest (count two) and negligence (count three), under Federal Rule of

Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction because plaintiff’s claims are barred

by the OGTCA. Dkt. # 23, at 17-22. The defendant officers also move to dismiss plaintiff’s state

law tort claims against them, for false arrest (count two), intentional infliction of emotional distress

(count four), and assault and battery (count five), on the basis that the officers are exempt from

liability under the OGTCA as employees of the state or political subdivision who were acting within

the scope of their employment. Dkt. # 22, at 22-27. Moreover, they argue her claims must be

dismissed because she has failed to affirmatively show that the officers lacked probable cause in

enacting her arrest, id. at 23-24, and she has not alleged sufficiently particular facts to survive a

motion to dismiss as to the remainder of her tort claims, id. at 23-27. The Court first analyzes the

claims for which it grants defendants’ motions to dismiss.

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A. State Law Tort Claims Against Catoosa (Counts Two and Four)

The state of Oklahoma has adopted statutes to shield itself, its political subdivisions, and its

employees from liability for all torts. OKLA. STAT. tit. 51, § 152.1. The OGTCA, however, leaves

open one avenue by which a plaintiff may seek remedy for tort claims against the state and its

subdivisions, under which Oklahoma has consented to subject itself to liability under specific

circumstances. Id. §§ 156-57. Catoosa raises a motion to dismiss under Rule 12(b)(1), that the

Court lacks subject-matter jurisdiction, on the basis that plaintiff failed to comply with the filing

requirements of the OGTCA and therefore her claims are time barred. Under the OGTCA, once a

claimant complies “with the time-limited procedural steps in §§ 156 and 157, the state’s consent to

be sued is manifest, the sovereign immunity bar is removed, and a judicial remedy for enforcement

of the tort claim against the state or political subdivision may be maintained.” Cruse v. Bd. of Cnty.

Comm’rs of Atoka Cnty., 910 P.2d 998, 1002-03 (Okla. 1995). Section 157(A) of the OGTCA

dictates that a plaintiff seeking to bring suit for a tort claim“may not initiate a suit against the state

or a political subdivision unless the claim has been denied in whole or in part.” A claim is

determined to be “denied” if “the state or political subdivision fails to approve the claim in its

entirety within ninety (90) days.” Id.

Plaintiff alleges that she “has fully complied with the procedural requirements and time

limitations of presenting a claim under the [OGTCA], and this action is timely filed.” Dkt. # 2, ¶ 5.

Plaintiff fails to allege how she has complied with the “time limitations of presenting a claim under

the [OGTCA].” Id. By contrast, Catoosa has offered evidence, which the Court considers pursuant

to Catoosa’s factual attack on plaintiff’s ability to assert the Court’s subject-matter jurisdiction, see

supra, that plaintiff sent a letter, putting the city on formal notice of her tort claim on February 2,

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2024. Dkt. # 23-2, at 1; Dkt. # 23, at 18. Under § 157(A). Based on this letter, the city would have

had until May 2, 2024 to consider and act on plaintiff’s claim, after which date the claim would have

been deemed “denied” and she would have been eligible to bring any tort claims against Catoosa.

Catoosa also offers evidence that plaintiff filed suit in Rogers County District Court asserting the

same claims against the same defendants as in this case, in Neuendorf v. Faxon, No. CJ-2024-81

(Okla. Rogers Cnty. Aug. 28, 2024). Dkt. # 23-3, at 1, 4. Plaintiff filed suit in Rogers County on

February 16, 2024, fourteen days after she submitted her notice to the city and prior to receiving

notice that her claim had been denied, as well as before the end of the 90-day window in which the

city would have had the opportunity to act and consider plaintiff’s claim before it was deemed

“denied.”3 Catoosa argues that plaintiff filed her Rogers County District Court claim prematurely,

and in doing so she failed to comply with the statutory requirements set forth in the OGTCA, barring

suit here.

Under Oklahoma law, a premature tort claim that was filed before the 90-day review period

cannot ripen into a timely claim without remediation, usually by “ref[iling] the action after the

90-day period expires and before the 180-day limitation expires.” Hathway v. State ex rel. Med.

Rsch. & Tech. Auth., 49 P.3d 740, 743 (Okla. 2002). In addition to providing that a suit must be

commenced only after a claim has been denied, the OGTCA also bars a litigant from bringing suit

more than 180 days after that denial. OKLA. STAT. tit. 51, § 157(B). As the Oklahoma Supreme

Court has noted, the “expiration of the 180-day time period in § 157(B) operates to bar judicial

enforcement of the claim.” Shanbour v. Hollingsworth, 918 P.2d 73, 75 (Okla. 1996); see also

3 Although Catoosa does not include this argument, the Court also notes that the instant matter

was filed on February 22, 2025, over a year after plaintiff sent her notice to the city. See Dkt.

# 2.

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Kiddy ex rel. B.K. v. Watts Pub. Sch., No. 24-CV-237-DES, 2025 WL 1928726, at *5 (E.D. Okla.

July 14, 2025). Catoosa argues that even if plaintiff’s claim was deemed “denied” as of the 90-day

mark after her tort claim notice submission, on May 2, 2024, the 180 day window in which she could

have corrected any error made by her premature filing to render her claim timely has long elapsed,

and plaintiff both failed to take corrective action in the Rogers County case and failed to file a new

case within the 180-day window. Dkt. # 23, at 19-20. In essence, because plaintiff failed to cure the

jurisdictional defect from prematurely filing suit in Rogers County District Court and because she

failed to file the case before this Court within the statutorily allotted window post-denial, she is out

of compliance with the OGTCA, and therefore suit against Catoosa is barred as to any state law tort

claims. Plaintiff offers no argument or explanation on this issue in her response to Catoosa’s motion

to dismiss. Dkt. # 34.

As the party invoking this Court’s jurisdiction, plaintiff bears the “burden of establishing

subject matter jurisdiction.” Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th

Cir. 2008). Plaintiff’s conclusory allegation that she complied with the requirements of the OGTCA,

including the timing requirements, fails to fulfill her burden given the evidence before the Court.

The Court concludes that neither the Rogers County case nor this case was filed within the window

afforded by the OGTCA, beginning when her claim was denied (or 90 days after she filed her notice)

and ending 180 days after that date. Plaintiff has not met her burden to establish that this Court has

subject-matter jurisdiction over plaintiff’s state law tort claims based on plaintiff’s failure to comply

with the timing requirements of the OGTCA. Therefore, the Court grants Catoosa’s motion under

Rule 12(b)(1), and dismisses the claim for negligence (count three) and partially dismisses the claim

for false arrest against Catoosa (count two).

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B. State Law Tort Claims Against the Defendant Officers

Although the defendant officers have not raised a motion under Rule 12(b)(1), “[fJederal

[c]ourts ‘have an independent obligation to determine whether subject-matter jurisdiction exists,

even in the absence of a challenge from any party,’ and thus a court may sua sponte raise the

question of whether there is subject matter jurisdiction ‘at any state of the litigation.’” Image

Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (quoting Arbaugh

v. Y & H Corp., 546 U.S. 500, 514 (2006)); FED. R. Civ. P. 12(h)(3). The OTGCA bars “an

employee of the state or political subdivision acting within the scope of his employment” from being

named as a defendant in an action alleging tort liability. OKLA. STAT. tit. 51, § 153(C); see Nail v.

City of Henryetta, 911 P.2d 914, 916 (Okla. 1996). The OGTCA defines “scope of employment”

as “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(13). Ifthe employee

acted “maliciously, or in bad faith,” he or she cannot have been acting within the scope of

employment. Nail, 911 P.2d at 917. Not every intentional tort is outside the scope of employment.

Id.

Other courts examining OGTCA claims in similar contexts have noted that whether the issue

of what actions are taken within the scope of employment “may be adjudicated upon consideration

of a summary judgment motion, it cannot properly be determined in a motion to dismiss.”

Pendegraft v. Bd. of Regents of Okla. Colls., No. 18-CV-793-D, 2019 WL 3806639, at *6 (W.D.

Okla. Aug. 13, 2019); Yelton v. Bd. of Cnty. Comm’rs of Can. Cnty., No. 21-CV-1001-G, 2024 WL

4406956, at *6 (W.D. Okla. Mar. 18, 2024); Melton v. Okla. ex rel. Univ. of Okla., 532 F. Supp. 3d

1080, 1092 (W.D. Okla. 2021). At this stage, the Court will not determine whether the acts the

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defendant officers may have undertaken were within the scope of their employment. However,

plaintiff pursues two of her tort claims against the defendant officers by alleging that they acted

within the scope of their employment. See Dkt. # 2, ¶¶ 27-28 (claim two, stating that plaintiff

pursues the false arrest claim against the officers in the scope of their employment under the

OGTCA), 43 (claim four, noting that the assault and battery claims are brought under the OGTCA).

As to those claims, on the basis that the defendant officer were acting within the scope of their

employment, the Court finds that it lacks subject-matter jurisdiction and is thus unable to adjudicate

those claims. Plaintiff notes, however, that she also pursues these claims on other grounds, namely

that she seeks judgment against the officers individually for “intentional tortious conduct, not in

good faith, that takes them outside the protections of the [O]GTCA.” Id. ¶¶ 28, 41. The Court does

not, therefore, dismiss the claims against the officers individually, alleged to have been acting

outside of their capacities as employees of Catoosa.

C. Section 1983 Claim (Count One) for Excessive Force Arising Under the Eighth

Amendment

Plaintiff also seeks relief under 42 U.S.C. § 1983, which creates a cause of action against

state officials for “deprivation of any rights, privileges, or immunities secured by the Constitution.”

42 U.S.C. § 1983; Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007). To state a claim under

§ 1983, a plaintiff must make two showings: first, she must allege “the violation of a right secured

by the Constitution and laws of the United States,” and second, she must “show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988). As the Court understands it, plaintiff argues that, with regard to the first element, she

has alleged sufficient facts to show violations of her Fourth Amendment right to be free from

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unlawful seizures because the officers exacted a warrantless arrest that lacked probable cause, and

her Fourth, Eighth, and Fourteenth Amendment rights to be free from excessive uses of force

because of the officers’ denial of medical attention after they broke her arm. Dkt. # 25, at 9-22; Dkt.

#2, 99 13-20."

During an arrest, officers are empowered “to use some degree of physical coercion or threat

thereof to effect it,” Graham v. Connor, 490 U.S. 386, 396 (1989); however, “the degree of physical

coercion that law enforcement officers may us is not unlimited,” Cortez, 478 F.3d at 1125.

Depending on the context in which force is used, an individual or municipality may run afoul of

different constitutional rights, and as such excessive force claims “can be maintained under the

Fourth, Fifth, Eighth, or Fourteenth Amendment[,].. . each carr[ying] with it a very different legal

test.” Est. of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (alteration in original) (quoting

Porro v. Barnes, 624 F.3d 1422, 1325 (10th Cir. 2010)). Plaintiff brings her claim for excessive

force under the Fourth, Eighth, and Fourteenth Amendments. See supra; Dkt. #2, 9] 14-20. “The

validity of the claim must then be judged by reference to the specific constitutional standard which

governs that right, rather than to some generalized ‘excessive force’ standard.” Graham v. Connor,

‘ Plaintiff's complaint does not straightforwardly state under which amendments each facet

of her claim attaches. In her allegations related to count one under § 1983, plaintiff alleges

violations of “the 4th, 8th, and 14th Amendments.” Id. 9] 14, 20. Elsewhere in that section,

plaintiff alleges that “breaking her arm. . . is an excessive force violation of the 4th and 14th

Amendments, and the infliction of pain, while refusing medical care, is a violation of the 8th

Amendment.” Dkt. #2, 419. In yet another place, she also alleges that the arrest “violated

her right to be free from unreasonable and warrantless seizures under the 4th Amendment.”

Id. 15. Finally, she states that the manner of arrest that led to her injuries “violated her 4th

Amendment right to be free from excessive use of force.” Id. 916. The Court deduces that

plaintiff attempts to allege one claim under the Fourth Amendment as to the right to be free

from unlawful arrest, one claim under the Fourth Amendment as to the right to be free from

excessive uses of force, one claim under the Eighth for refusing her medical care, and one

claim under the Fourteenth Amendment also for refusing medical care.

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490 U.S. 386, 394 (1989). This is because courts analyzing the force applied consider the

context—the fact that the force was applied during an arrest [as opposed to pretrial detainment]—in

determining the maximum level of force permissible. Cortez v. McCauley, 478 F.3d 1108, 1126

(10th Cir. 2007); United States v. Perdue, 8 F.3d 1455, 1464 (10th Cir. 1993) (“[P]olice have

historically been able to use more force in making an arrest than in effecting an investigative

detention.”).

Eighth Amendment claims for excessive force apply to “prisoners already convicted of a

crime who claim that their punishments involve excessive force” and are reviewed to determine

“whether the ‘force was applied in a good faith effort to maintain or restore discipline, or maliciously

and sadistically cause harm.’” Porro v. Barnes, 624 F.3d 1322, 1325-26 (10th Cir. 2010) (quoting

Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)). The Tenth Circuit has previously held that “the use

of excessive force on a pretrial detainee does not violate the Eighth Amendment’s prohibition of

cruel and unusual punishment, while it does constitute a Fourteenth Amendment deprivation of life

or liberty without process; the Eighth Amendment does not apply until after an adjudication of guilt.”

Garcia v. Salt Lake City, 768 F.2d 303, 307 (10th Cir. 1985). However, following detainment and

prior to an adjudication, the Fourteenth Amendment’s due process standard may be properly applied

to “protect[] pretrial detainees against deliberate indifference to their serious medical needs.” Id.

As the defendant officers argue, all of plaintiff’s allegations relating to excessive force under the

Eighth Amendment occurred during the moments following the injury while she was still in

handcuffs, at the scene of the arrest, and the arrest was ongoing. Dkt. # 22, at 13-14 (citing Est. of

Booker v. Gomez, 745 F.3d 405, 418-19 (10th Cir. 2014)); Dkt. # 35, at 3; see Dkt. # 2, ¶¶ 17-20.

Because plaintiff fails to allege—and likely cannot allege, as the record of which the Court took

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judicial notice does not show that any adjudication of guilt occurred—that an excessive use of force

occurred following an adjudication of guilt, plaintiff fails to raise a colorable claim under the Eighth

Amendment alone for excessive use of force. Based on the facts as pled in plaintiff’s complaint and

the one criminal docket of which the Court takes judicial notice, plaintiff’s claim against all

defendants as to her Eighth Amendment right to be free of the use of excessive force fails to state

a claim. Therefore defendants’ motions (Dkt. # 22; Dkt. # 23), are granted as to the Eighth

Amendment claim of count one.

Based on the foregoing, the Court dismisses the following claims: plaintiff’s § 1983 claim

under the Eighth Amendment (count one) against all defendants, false arrest claim (count two)

against Catoosa, and negligence claim (count three) against Catoosa.

IV.

The following claims remain: § 1983 claim (count one) against all defendants as to violations

of the Fourth Amendment for unlawful arrest, the Fourth Amendment for excessive force, and the

Fourteenth Amendment for excessive force; false arrest claim (count two) against the defendant

officers not under the OGTCA; intentional infliction of emotional distress claim (count four) against

the defendant officers not under the OGTCA; and assault and battery claim (count five) against the

defendant officers not under the OGTCA. As to these claims, the evidentiary materials are so

entwined with the parties’ arguments, as evinced by plaintiff’s submission of a Rule 56(d) affidavit

(see Dkt. # 34-1) and the volume of extrinsic evidence submitted by both parties on which their

arguments rest, that the Court finds it must treat the motions to dismiss the remaining claims as

motions for summary judgment in order to fully consider the materials submitted and arguments

based thereon. Therefore, the Court denies defendants’ motions to dismiss as to the remaining

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claims and treats the motions to dismiss as to these claims as motions for summary judgment under

Rule 56.

IT IS THEREFORE ORDERED that the defendant officers’ motion to dismiss (Dkt. #22)

is granted as to count one as pled under the Eighth Amendment and counts two, four, and five as

to the officers as employees of the state. The motion is denied on all other grounds.

IT IS FURTHER ORDERED that the City of Catoosa’s motion to dismiss (Dkt. # 23) is

granted as to one count one as pled under the Eighth Amendment and counts two and three against

the city. The motion is denied on all other grounds.

IT IS FURTHER ORDERED that, based on the parties’ requests and the inclusion of

external evidence that is not excluded by the Court under Rule 56(d), it is necessary to treat the

motions to dismiss the remaining claims as motions to summary judgment. Additional discovery

is permitted as to the remaining claims only. No later than ninety (90) days from the date of this

order, or on or before June 1, 2026, the parties shall complete discovery as to the remaining claims.

Twenty-one (21) days thereafter, or on or before June 22, 2026, defendants shall present any

evidentiary materials, legal authority, and arguments not previously provided to support their

motions. Plaintiff shall respond, presenting any evidentiary materials, legal authority, and arguments

not previously provided to support her response, twenty-one (21) days thereafter, or on or before

July 13,2026. Finally, fourteen (14) days thereafter, or on or before July 27, 2026, defendants shall

file any replies.

IT IS SO ORDERED this 2nd day of March, 2026.

CLAIREV.EAGAN J

UNITED STATES DISTRICT JUDGE

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