Shed v. Oklahoma Department of Human Services et al
ORDER by Judge Ronald A. White granting Defendant Thomas and Town of Haskell's Motion for Summary Judgment ( 91 Motion for Summary Judgment) (lal, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MITCHELL BEAU SHED,
STATE OF OKLAHOMA ex rel
Oklahoma Department of Human
Services, et al.,
Case No. CIV-16-383-RAW
Before the court is the motion of defendants Kermit Thomas and Town of Haskell for
summary judgment (Dkt. # 91). Plaintiff filed a response on June 12, 2017 (Dkt. # 99).
Defendants filed a reply on June 16, 2017 (Dkt. # 103). This lawsuit commenced in the
District Court for Muskogee County, when plaintiff filed his petition on June 27, 2016. The
action was removed to this court and plaintiff filed an amended complaint on October 26,
Statement of Undisputed Facts
1. Defendant Thomas is a certified police officer for the Town of Haskell, Oklahoma.
2. On or about May 5, 2012, Defendant Thomas was contacted by Oklahoma DHS
employee Tracy Murphy, who advised DHS had received information regarding a possible
sexual assault of a five-year old girl in the Town of Haskell.
3. Defendant Thomas was asked by the DHS employee to attend a forensic interview
of KP, and her three-year old sister on May 7, 2012, at 11:30 a.m., at the Kids Space Center
in Muskogee, Oklahoma.
4. Defendant Thomas attended the interview, but viewed it on the other side of a twoway mirror. He did not participate in the questioning of KP.
5. During the initial interview, Defendant Thomas heard KP say that Plaintiff had put
his hand under her night dress and was digging in her. KP demonstrated with male and
female dolls what had occurred by putting the male doll’s hand under the dress of the female
doll and moving the hand up and down.
6. Defendant Thomas also observed the interview of KP’s mother, Jessica Shed, who
stated KP had never told her anyone had touched her private area.
7. Defendant Thomas interviewed plaintiff regarding the allegations on May 9, 2012
at the Haskell Police Department.
Plaintiff was accompanied by legal counsel and
Mirandized. Plaintiff denied touching KP or her sister except for washing their hair while
8. On June 13, 2012, a one count information was filed in Muskogee County District
Court, case number CF-2012-508, naming plaintiff as the defendant, and listing as count one:
CHILD SEXUAL ABUSE-21 O.S. 843.5(E) a FELONY.
9. Simultaneously filed with the information and the affidavit of Defendant Thomas
was a pleading entitled “FINDING OF PROBABLE CAUSE,” signed by a Muskogee
County District Court Judge.
10. On August 31, 2012, a preliminary hearing was held. Defendant Thomas did not
testify. The victim, KP, did testify at the preliminary hearing.
11. Following the hearing, Plaintiff was bound over for trial.
Summary judgment is appropriate where there is no dispute of material facts and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.56. When presented
with a summary judgment motion, this Court must determine whether there “are any genuine
factual issues that properly can be resolved only by the finder of fact because they may
reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). When evaluating a motion for
summary judgment, this Court must examine the factual record and reasonable inferences
therefrom in the light most favorable to the party opposing summary judgment. Gray v.
Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988). The party opposing summary
judgment, however, “may not rest upon mere allegations or denials of his pleading but . . .
must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248, 106 S.Ct. at 2510 (quoting First National Bank of Arizona v. Cities Service Co.,
391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
I. Section 1983 Malicious Prosecution Claim
Section 1983 provides a federal civil remedy for the “deprivation of any rights,
privileges, or immunities secured by the Constitution” by any person acting under color of
state law. 42 U.S.C. § 1983. The elements of a § 1983 malicious prosecution claim are: 1)
the defendant caused the plaintiff’s continued confinement or prosecution; 2) the original
action terminated in favor of the plaintiff; 3) there was no probable cause to support the
original arrest, continued confinement, or prosecution; 4) the defendant acted with malice;
and 5) the plaintiff sustained damages. McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10 th Cir.
2011)(citing Novitsky v. City of Aurora, 491 F.3d 1244, 1257-58 (10 th Cir. 2007).
The Tenth Circuit has held “it is a violation of the Fourth Amendment for an arrest
warrant affiant to ‘knowingly, or with reckless disregard for the truth,’ include false
statements in the affidavit.” Taylor v. Meacham, 82 F.3d 1556, 1562 (10 th Cir. 1996)
(quoting Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d
667 (1978)). A Fourth Amendment violation also occurs if information is “knowingly or
recklessly omitted from the affidavit” which, if included, would have vitiated probable cause.
Id. (citing Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir. 1990)). Where information
has been omitted from an arrest warrant affidavit, the court must determine the existence of
probable cause “by examining the affidavit as if the omitted information had been included
and inquiring if the affidavit would still have given rise to probable cause for the warrant.”
In this case, Plaintiff alleges “Thomas obtained an arrest warrant for the Plaintiff by
knowingly omitting a recantation.” (Dkt. # 99, at p. 7). Specifically, after providing
significant details1 during her interview regarding where plaintiff touched her and
demonstrating with male and female dolls what had occurred, who she told, and that plaintiff
had touched her baby brothers, the 5 year old stated the following:
MS. PURDOM: Okay. Have you seen [plaintiff] touch anyone else that you
MS. PURDOM: Okay. Did [plaintiff] touch you anywhere else?
KP: [Plaintiff] hasn’t touched nobody.
MS. PURDOM: [Plaintiff] didn’t touch anybody?
Dkt. # 99-2, at pp. 34-35 (Transcript pages 133-134).
Contrary to plaintiff’s position, based upon the details which the child gave regarding
what was done to her, this court finds Defendant Thomas had probable cause,2 when he
prepared his affidavit and submitted it to the district attorney’s office, to believe an offense
had been committed against KP. Discrepancies in the child’s statements did nothing to
undermine the solid core of the child’s statements regarding what was actually done to her
See, Dkt. # 99-2 (Transcript of Deposition of Kermit Thomas III, at transcript pages 128-134.) See also, Dkt. # 91-6
at p. 34.
“The standard of probable cause does not require indubitable or necessarily convincing evidence, but only so much
“reasonably trustworthy information” as “to warrant a prudent man in believing that the [arrestee has] committed or [is]
committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).
for purpose of determining probable cause for issuance of warrant. See, Easton v. City of
Boulder, 776 F.2d 1441, 1450 (10th Cir. 1985). Rather, the relevant question is “whether a
substantial probability existed that the suspect committed the crime, requiring more than a
bare suspicion.” Hopper v. Fenton, 665 Fed.Appx. 685, 686 (10 th Cir. 2016) (quoting Kerns
v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011). See also, Smith v. Roberts, 115 F.3d 818,
820 (10th Cir. 1997)(court distinguishes between a recantation which eliminates the basis for
conviction and a contradiction or inconsistency in trial testimony). There can be no doubt
that KP did not recant her statements regarding what plaintiff did to her.
Plaintiff has failed to provide any evidence to establish that Defendant Thomas either
knowingly or recklessly omitted “material” information from his affidavit supporting
plaintiff’s arrest. In fact, after hearing the victim’s testimony at the preliminary hearing, the
judge bound the defendant over for trial. The judge based his bind-over order on the victim’s
testimony as opposed to Thomas’ interpretation of the victim’s statements. As a result, this
court finds Defendant Thomas had probable cause to arrest the plaintiff based solely upon
KP’s statement and her demonstration of what was done to her. Therefore, Defendant
Thomas is entitled to summary judgment on plaintiff’s § 1983 malicious prosecution claim.
II. Familial Interference Claim
Next, plaintiff asserts a federal claim pursuant to 42 U.S.C. § 1983 for violation of the
Fourteenth Amendment, specifically familial interference. Plaintiff also asserts a claim for
familial interference as a direct violation of the Oklahoma Constitution, specifically Art. 2,
Section 7 (due process). Thomas seeks dismissal of this claim on the basis that the claim is
time-barred. Plaintiff’s response indicates he is no longer pursuing these claims. Dkt. # 99,
n. 1. Accordingly, these claims are hereby dismissed.
III. Oklahoma constitutional claim for malicious prosecution
Plaintiff also brings a claim of malicious prosecution based upon the Oklahoma
Constitution Art. 2, Section 30. Plaintiff relies on Bosh v. Cherokee County Building
Authority, 305 P.3d 994 (Okla. 2013), in which the Oklahoma Supreme Court recognized a
private right of action under Oklahoma Constitution Art. 2, Section 30. Without deciding
whether Bosh applies to the specific facts of this case,3 this court finds for the reasons
Defendant Thomas was entitled to summary judgment on plaintiff’s § 1983 claim for
malicious prosecution, Defendant Thomas and the Town of Haskell are entitled to summary
judgment on the malicious prosecution claims brought pursuant to Art. 2, Section 30 of the
IV. Oklahoma Governmental Tort Claims Act
Finally, plaintiff brings a claim against Defendant Town of Haskell under the
Oklahoma Governmental Torts Claims Act, 51 O.S. §§ 151, et seq.
As discussed above,
Defendant Thomas had probable cause to arrest plaintiff. Therefore, Defendant Thomas did
not breach a duty of care to plaintiff. Accordingly, Defendant Town is entitled to summary
judgment on plaintiff’s claim under the Oklahoma Governmental Tort Claims Act.
No authority has extended a Bosh claim to malicious prosecution.
V. Qualified Immunity
This court has held that Defendant Thomas’ conduct did not violate the Fourth
Amendment or the Oklahoma Constitution, but even if that were not the case, Thomas would
still be entitled to summary judgment based on qualified immunity.
“The doctrine of qualified immunity shields officials from civil liability so long as
their conduct ‘does not violate clearly established rights of which a reasonable person would
have known.’” Mullenix v. Luna, — U.S. —, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015). The
Supreme Court has explained that “a defendant cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently definite that any reasonable
official in the defendant’s shoes would have understood that he was violating it.” Plumhoff
v. Rickard, — U.S. —, 134 S.Ct. 2012, 2013, 188 L.Ed.2d 1056 (2014)(citing Ashcroft v. alKidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011)). “Put simply,
qualified immunity protects ‘all by the plainly incompetent or those who knowingly violate
the law.’” Mullinex, 136 S.Ct. at 308 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct.
1092, 89 L.Ed.2d 271 (1986)).
While it has long been established that omissions of “material” information from an
affidavit could give rise to a § 1983 claim for malicious prosecution, Stewart v. Donges, 915
F.2d 572 (10th Cir. 1990), where omitted information is immaterial because a magistrate
could still have found probable cause, no constitutional violation will be found. Again, based
upon the extensive details provided by KP, this court finds no reasonable official would have
understood that the statements quoted above were a recantation by KP concerning the abuse
which was perpetrated upon her. This is particularly true in light of KP’s age. Moreover,
there is no direct evidence in the record which suggests that Thomas’ actions were malicious.
As a result, this court finds plaintiff has failed to establish any conduct by Defendant Thomas
which violated the clearly established statutory or constitutional rights of the plaintiff.
Accordingly, Defendant Thomas is entitled to qualified immunity for all of the actions he
took in regard to obtaining an arrest warrant against the plaintiff.
For the reasons stated herein, Defendant Thomas and Town of Haskell’s Motion for
Summary Judgment (Dkt. # 91) is GRANTED.
IT IS SO ORDERED this 20th day of June, 2017.
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