Morris v. McAlester, City of et al
Filing
53
OPINION AND ORDER by Judge Frank H. Seay granting 42 Motion to Dismiss. (trl, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHRIS MORRIS,
)
)
Plaintiff, )
)
vs.
)
)
THE CITY OF MCALESTER, a
)
political subdivision of the
)
State of Oklahoma; and JIM LYLES,)
in his individual capacity,
)
)
Defendants. )
No. CIV-10-200-FHS
ORDER AND OPINION
Before the court for its consideration is the Defendant
The City of McAlester’s Motion to Dismiss and Brief in
Support (Doc. # 42).
In this motion defendant argues it is
entitled to dismissal of plaintiff’s newly added claim for
negligence because it is time-barred and fails to state a
claim upon which relief can be granted.
Plaintiff responds
by arguing that not all of its newly added negligence claim
is time-barred and that it has stated a claim for relief.
The court rules as follows on the motion.
Defendant first argues the tort claim against the City
of McAlester is time-barred. In Oklahoma, claims against a
political subdivision must be presented within one year of
the date the loss occurs. 51 O.S. A. Sec. 156 (B). If the
claim is not presented within that time-frame the claim is
forever barred. Id. In his Amended Complaint, plaintiff
alleges that problems began with Chief Lyles when plaintiff
was elected President of the Fraternal Order of Police Lodge
in 2006, and that Lyles became angry at plaintiff’s
activities. Plaintiff complains he suffered an on-the-job
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injury in March of 2008, which caused him to file a worker’s
compensation claim and that defendant Lyles engaged in
retaliatory actions as a result. Plaintiff also alleges
that in August of 2008 defendant Lyles “set plaintiff up to
be arrested for a charge of driving under the influence and
orchestrated and caused plaintiff to be falsely arrested in
order to terminate plaintiff’s employment with the city.”
Finally, plaintiff alleges that he was terminated on
September 22, 2008, as a result of retaliation by Lyles.
With respect to his negligence claim against the City,
plaintiff states that he sent a timely Notice of Tort Claim
on April 23, 2010, which was denied 90 days later.
After a review of the Notice of Tort Claim and the
allegations in the Amended Complaint, it appears to this
court the only claim that is not time-barred is the claim
related to the retaliatory actions of Chief Lyles after
plaintiff was reinstated on or about July 23, 2009.
Plaintiff seems to agree with this when he states in his
response to the Motion to Dismiss “this Court cannot find
that Morris’ negligence claims should be dismissed in its
entirety because it is time-barred since there are clearly
allegations contained in the Amended Complaint and in the
Notice of Tort Claim which occurred within the one year
time-frame.” The claim in the Amended Complaint the
plaintiff refers to as not time-barred, is the claim
addressing the retaliatory conduct which occurred after his
reinstatement in July of 2009. The court agrees that some
of the plaintiff’s newly brought negligence claims are timebarred. The court finds all of plaintiff’s negligence claims
are time-barred except the claims which deal with
retaliatory conduct by defendant Lyles after plaintiff’s
reinstatement in July 2009.
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The only remaining negligence claim is one for
retaliatory conduct. This court finds that no such claim
exists under the law. In Cheonoweth v. City of Miami, 240
P.3d 1080 (Okla. Civ. App. Div. 3, 2010) plaintiff filed a
lawsuit in federal court for both emotional damages and
retaliation. The appellate court affirmed dismissal of the
retaliation claim finding that no legal authority existed
for a damages claim for retaliation. Id. at 1085. In his
Notice of Tort claim Chenoweth argued he received low marks
from the City which “hampered his ability to receive any
promotion or raise.” Id. at 1084. The court noted, that
whether the plaintiff was entitled to a promotion or pay
raise depended on the provision of the collective bargaining
agreement and consideration of job performance.
In the case at bar, plaintiff is also arguing that
after he was reinstated in July of 2009 he was retaliated
against by defendant Lyles when he did not get promotions he
deserved and could not get transferred back to the day
shift. He also argues he was pulled from CLEET classes and
denied additional training. The court finds there is no
basis in law for a damages claim for retaliation. Chenoweth
at 1085. As a result, the court dismisses plaintiff’s
remaining negligence claim regarding retaliation.
Accordingly, the defendant’s Motion to Dismiss
plaintiff’s negligence claim is hereby granted.
IT IS SO ORDERED this 10th day of May, 2011.
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