Brown v. Eppler et al
Filing
136
OPINION AND ORDER by Chief Judge Claire V Eagan that this is a final order terminating this case and a separate judgment will be entered herewith ; striking/terminating deadline(s)/Hearing(s); denying 93 Motion for Partial Summary Judgment; granting 94 Motion for Summary Judgment; denying 115 Motion for Miscellaneous Relief; denying 116 Motion for Sanctions; finding as moot 121 Motion for Miscellaneous Relief; finding as moot 125 Motion for Miscellaneous Relief; finding as moot 126 Motion to Compel; finding as moot 127 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s); finding as moot 130 Motion to Strike; finding as moot 134 Motion to Strike Document(s) (Re: 1 Complaint ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAVID L. BROWN,
Plaintiff,
v.
J.D. EPPLER, RAY WILLARD, JANE DOE,
JANET DOE, METROPOLITAN TULSA
TRANSIT AUTHORITY, PAUL T.
BOUDREAUX, and RICHARDSON
RICHARDSON BOUDREAUX,
Defendants.
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Case No. 09-CV-0466-CVE-TLW
OPINION AND ORDER
Now before the Court are Plaintiff’s Motion of Partial Summary Judgment (Dkt. # 93) and
Defendants’ Motion for Summary Judgment and Brief in Support (Dkt. # 94). Plaintiff has also filed
a Motion to Cite and Sanction Defendants for Aggravated Perjury (Dkt. ## 115, 116), Plaintiff’s
Motion to Renew Scheduling Order Deadlines (Dkt. # 125), and a Motion for Extension of Time to
File Pretrial Disclosures (Dkt. # 127). Defendants have also filed Defendants’ Motion to Strike
Plaintiff’s Motion to Renew Scheduling Order Deadlines (Dkt. # 134) and a response in opposition
to plaintiff’s motion for extension of time to file pretrial disclosures (Dkt. # 135).
I.
Plaintiff David L. Brown, appearing pro se, brought suit against defendants J.D. Eppler, Ray
Willard, Jane Doe, Janet Doe (collectively, “employee defendants”), Metropolitan Tulsa Transit
Authority (MTTA), Paul T. Boudreaux, and Richardson Richardson Boudreaux, alleging that
defendants violated and conspired to violate his rights under the United States Constitution, federal
civil rights laws, and Oklahoma law. Dkt. # 1, at 1. Brown previously filed a similar action in state
court, which was dismissed. Id. at 9-10. Plaintiff’s complaint alleges numerous claims for relief
against the MTTA and employee defendants, including violations of: the equal protection, due
process, and “privileges and immunities” clauses of the United States Constitution; 42 U.S.C. §§
1983 and 1985; U.S. Department of Transportation regulations; and Oklahoma law. It also alleges
violation of the equal protection and due process clauses and 42 U.S.C. §§ 1983 and 1985 by
Boudreaux and Richardson Richardson Boudreaux. The Court previously dismissed all of plaintiff’s
claims except those under § 1983 for violations of the equal protection and due process clauses of
the United States Constitution. Dkt. # 18. The Court denied plaintiff’s motion for a preliminary
injunction, as well as the remaining defendants’ first motion for summary judgment. Dkt. ## 25,
47.
MTTA is a trust created under Tulsa City Ordinance Title 39, Ch. 9, pursuant to the rules
governing municipal trusts set forth in OKLA. STAT. tit. 60, §§ 176-80. MTTA is responsible for the
operation of municipal buses within Tulsa, Oklahoma. Eppler is currently, and was at the time of
the incidents at issue, a security officer for MTTA. Dkt. # 94-3, at 1. Brown alleges that Jane Doe
is a female bus driver employed by MTTA, and that Janet Doe is a female employed by MTTA in
some supervisory capacity. Dkt. # 1, at 1-2. Willard is, and was at the time of the incidents at issue,
the manager of security for MTTA. Dkt. # 94-4, at 1.
The dispute at issue began on or about April 5, 2007. Dkt. # 1, at 3. On that day, plaintiff
was walking toward an MTTA bus stop with the intent to ride a bus, and saw a bus approaching.
Brown had not yet reached the stop but, in an attempt to make the bus wait for him, held up a bus
transfer pass. Dkt. # 94-1, at 17. The bus did not stop, and Brown waited for it to return. When it
did, Brown boarded, and asked the driver, Jane Doe, why she had not stopped for him when she
2
passed him. Id. at 18. Brown says that he told her that other drivers stop for people in that situation,
and she responded that she was not like other drivers. Id. Brown claims that he then sat down in
the back of the bus and that, without further provocation from him, the driver continued to harass
him. Id. at 18-19. He claims that she called her supervisor, Janet Doe, over the bus’s radio, and
informed her that she was having a problem with a passenger. Janet Doe allegedly then told Brown
to “sit down” and “shut up,” or she would have him removed from the bus. Dkt. # 1, at 3. Brown
claims that he did not say anything more to Jane Doe, but that she continued to speak to him. She
stopped the bus soon thereafter and told him that if he didn’t get off the bus, she would call the
police. Id. at 3-4; Dkt. # 94-1, at 19. Brown left the bus, but called the bus driver a “nappy-haired
whore” as he exited. Dkt. # 94-1, at 20. He claims that when he tried to board another bus that
afternoon, the driver would not admit him as a passenger. Id. Eppler attests that he was notified of
plaintiff’s conduct on April 5, 2007, and that plaintiff was intoxicated at the time of his removal
from the bus. Dkt. # 94-3, at 1. As a result of the events on April 5, plaintiff was banned from
MTTA bus use for approximately thirty days. Id. at 2; Dkt. # 94-4, at 1. Following his removal
from the bus in April 2007, Brown made an oral complaint to the MTTA. However, he claims that
no action was taken on his behalf. Dkt. ## 1, at 4; 94-1, at 20
Despite the imposition of the thirty-day ban, plaintiff was able at times to ride MTTA buses.
Dkt. # 94-5, at 8-9. However, plaintiff was removed from an MTTA bus in May 2007, allegedly for
being intoxicated and disruptive. Dkt. ## 94-3, at 2; 94-4, at 2; 94-5, at 9. The timing of the next
incident is not clear from the summary judgment record, but at some point after his removal from
a bus in May 2007, plaintiff was walking past the downtown bus station. Dkt. # 94-1, at 22. While
across the street from the station, he saw Eppler, and began to yell at him. Id. Plaintiff claims that
3
he yelled only that he was going to sue Eppler. Id. Defendants allege that plaintiff was intoxicated,
and that he shouted obscenities across the street at both Eppler and Tulsa County Deputy Sheriff
Geza Horvath. Dkt. ## 94-1, at 22-28; 94-3, at 2; 94-4, at 1-2. Horvath then left the MTTA
premises, walked toward plaintiff, and instructed him to leave the area. Id. at 27. Brown continued
to make disparaging remarks to Horvath, including allegations of racism. Id. He says that after he
made those allegations, Horvath told him that he was under arrest. Id. Brown ran across the street,
but then stopped and was arrested by Horvath. Id. at 29-30. He was charged with public
drunkenness, resisting an officer, and breach of the peace. Id. at 31-32; Dkt. # 94-6, at 2-3.
Following his arrest, he was permanently banned from all future MTTA bus use. Brown alleges that
Willard took a picture of him at the time of his arrest, and posted it around the MTTA bus station.
Dkt. # 30, at 19-23.
Both Eppler and Willard attest that the removal of plaintiff from buses in April and May
2007, and the subsequent ban on plaintiff’s future use of MTTA buses, was a result of plaintiff’s
actions, including public intoxication, disruptive behavior, and criminal conduct. Dkt. ## 94-3, at
2; 94-4, at 2. Willard further attests that “[t]he ban o[n] [p]laintiff’s future use of MTTA buses was
a decision made by MTTA pursuant to MTTA’s published and written rules against any fighting,
throwing of any objects, pushing, rough or loud behavior or vulgar langauge and pursuant to
MTTA’s policy to ensure that their customers have a safe and enjoyable ride.” Dkt. # 94-4, at 2.
Eppler claims that he was not involved in the decision to impose a permanent ban on plaintiff’s use
of the MTTA buses. Dkt. # 94-3, at 2. Defendants state that “[i]t was not and has never been the
policy of MTTA to ban anyone based upon their race.” Id.
4
According to plaintiff, he had a conversation with Eppler in July 2008 during which plaintiff
asked Eppler how long he was going to be banned from the bus and Eppler told plaintiff to speak
to Willard. Dkt. # 94-1, at 37. Brown says he went to the MTTA office in July or August 2008, and
that he spoke to Willard. Id. However, he claims that Willard was rude to him, that he was not
permitted to make any statements, and that he was told to leave the office. Id. at 38. Willard denies
that plaintiff came to his office to discuss the ban. Dkt. # 94-5, at 16. In his complaint, Brown
claims that he requested a hearing or other means by which to “contest the arbitrary and capricious”
decision to ban him from the bus, but that his request was ignored and denied. Dkt. # 1, at 5.
However, defendants claim that while plaintiff orally contested his ban, he “never asked for a
hearing or for an alternative method to contest said ban, even though he had ample opportunity to
do so.” Dkt. ## 94, at 8; 94-1, at 37. Brown filed this lawsuit in July 2009.
II.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 317.
“Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just,
speedy and inexpensive determination of every action.’” Id. at 327.
5
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts . . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court draws “all justifiable inferences,” id. at 254, and construes the record in the light most
favorable, Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998), to the party opposing summary
judgment.
III.
Brown’s sole remaining claims are against MTTA and the employee defendants for due
process and equal protection violations under 42 U.S.C. § 1983.1 Dkt. # 18, at 18. Plaintiff moves
for partial summary judgment regarding his due process claim against MTTA. Dkt. # 93.
Defendants oppose summary judgment on that claim, and move for summary judgment on that and
Brown’s other remaining claim. Dkt. # 94.
1
In his response to defendants’ motion for summary judgment, Brown says he “anticipates
filing in this ca[se] a request that this Court acknowledge a cause of action alleged in the
Original Complaint for retaliation for the exercise of constitutional rights. Said pleading will
likely be filed within ten or fewer days from the filing of this instant Response.” Dkt. # 108,
at 9. The Court has received no such request from plaintiff, and will not consider any
alleged retaliation issue.
6
A.
Due Process
“The Due Process Clause provides that certain substantive rights – life, liberty, and property
– cannot be deprived except pursuant to constitutionally adequate procedure.” Schulz v. City of
Longmont, Colo., 465 F.3d 433, 443 (10th Cir. 2006). When determining whether an individual has
been deprived of his due process rights, the Court must consider (1) whether the individual
possessed a protected interest giving rise to due process protection, and (2) whether the government
afforded the individual an appropriate level of process. Garcia v. City of Albuquerque, 232 F.3d
760, 769 (10th Cir. 2000). Brown claims that he had a protected liberty or property interest in
access to public transportation. Dkt. # 93, at 6. He further states that, following his oral complaint
to MTTA in April 2007, no “official written documented” action was taken by MTTA officials, he
did not receive written notification as to why he was banned from riding MTTA buses, and he was
never given a hearing or other means by which to contest the ban, despite his making an “oral
request” of MTTA officials that he be allowed to contest or appeal the decision to ban him. Id. at
3-4. Therefore, he argues that he is entitled to summary judgment as to MTTA’s violation of his due
process rights because he was deprived of a protected interest and was not given the proper process
in connection with that deprivation.
Brown claims he has a liberty interest in freedom to travel, live, and work where he pleases,
and pursue the livelihood of his choice, as well as a property interest in availing himself of the
benefits given to all citizens. Dkt. # 108, at 15. The liberty interests protected by the Due Process
Clause are “not merely freedom from bodily restraint but also the right of the individual to contract,
to engage in any of the common occupations of life . . . and generally to enjoy those privileges long
recognized . . . as essential to the orderly pursuit of happiness by free men.” Board of Regents v.
7
Roth, 408 U.S. 564, 572 (1972). The “Constitution only protects [the liberty to follow a trade,
profession, or other calling] from state actions that threaten to deprive persons of the right to pursue
their chosen occupation,” and actions that exclude a person from a particular job only are not
actionable under the Due Process Clause. Bernard v. United Tp. High School Dist. No. 30, 5 F.3d
1090, 1092 (7th Cir. 1993). Although Brown’s inability to travel by bus may have impacted his
ability to reach certain job sites, Dkt. # 30, at 28, it did not affect his right to work in any particular
field, and the bans therefore did not implicate his liberty interest in employment. Moreover,
although the “right of interstate travel has repeatedly been recognized as a basic constitutional
freedom,” the Supreme Court has not decided whether intrastate travel receives the same protection.
See Memorial Hosp. v. Maricopa Cnty., 415 U.S. 250, 255-56 (1974). However, even assuming that
it does, “the denial of only one mode of transportation does not violate the right to interstate travel.”
Baer v. White, No. 08 C 3886, 2009 WL 1543864, at * 7 (N.D. Ill. June 3, 2009)(citing Matthew
v. Honish, 233 F. App’x 563 (7th Cir. 2007)). Thus, the bans imposed on Brown did not implicate
any protected liberty interests, and the Court’s analysis will focus solely on the alleged violation of
Brown’s property interest when he was banned from use of MTTA buses.2
“The Fourteenth Amendment’s procedural protection of property is a safeguard of the
security of interests that a person has already acquired in specific benefits.” Roth, 408 U.S. at 576.
The Roth Court explained that:
2
The Court interprets Brown’s claims to allege two distinct violations of his protected
property interest: 1) the initial 30-day ban; and 2) the permanent ban. Both may be assessed
for possible violations of a protected interest. See Fuentes v. Shevin, 407 U.S. 67, 84-85
(1972)(“The Fourteenth Amendment draws no bright lines around three-day, 10-day, or 50day deprivations of property. While the length and consequent severity of a deprivation may
be another factor to weigh in . . . determining the appropriate form of hearing, it is not
decisive of the basic right to a prior hearing of some kind.”)
8
To have a property interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a unilateral expectation of it.
He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the
ancient institution of property to protect those claims upon which people rely in their
daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the
constitutional right to a hearing to provide an opportunity for a person to v[i]ndicate
those claims.
Property interests, of course, are not created by the Constitution. Rather they are
created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law – rules or understandings that
secure certain benefits and that support claims of entitlement to those benefits.
Id. at 577-58. State law can create a property interest in a number of ways, including by explicitly
creating such a right. Moore v. Middlebrook, 96 F. App’x 634, 638 (10th Cir. 2004)(unpublished).3
Where state law does not explicitly create a property right, the Court must look to the degree to
which the state has restrained the discretion given to the decisionmaker to withhold the right in
question. Id. “A benefit is not a protected entitlement if government officials may grant or deny
it in their discretion.” Gonzales, 545 U.S. at 756.
Whether an individual has a protected property interest in access to public transportation has
not been decided by the Tenth Circuit Court of Appeals or any other appeals court, and the question
is a close one. See, e.g., Ward v. Housatonic Area Regional Transit Dist., 154 F. Supp. 2d 339, 348
(D. Conn. 2001). To determine whether Brown had a protected interest in access to MTTA buses,
the Court must look for “existing rules or understandings that stem from an independent source such
as state law.” Roth, 408 U.S. at 577-78. Oklahoma state law does not explicitly create a protected
interest in access to public transportation. Thus, the Court must look instead to the degree to which
3
Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. 32.1; 10th Cir. R. 32.1.
9
the state has restrained the discretion that MTTA has to provide the benefit of its services. Moore,
96 F. App’x at 638.
Defendants assert that “MTTA officials are given broad discretion to ban MTTA bus use
pursuant to MTTA policies and procedures,” Dkt. # 101, at 4, 11, but have provided no evidence by
which it is possible to verify the scope of discretion given to MTTA. However, as Brown alleges,
MTTA is a “common carrier” under Oklahoma law, which defines that term to mean “[e]veryone
who offers to the public to carry persons, property or messages.” OKLA. STAT. tit. 13, § 4. “A
common carrier must, if able to do so, accept and carry whatever is offered to him, at a reasonable
time and place, of a kind that he undertakes or is accustomed to carry.” OKLA. STAT. tit. 13, § 5. “A
common carrier of persons may make rules for the conduct of his business, and may require
passengers to conform to them,” if such rules are “lawful, public, uniform in their application, and
reasonable.” OKLA. STAT. tit. 13, § 43. “[A] passenger who refuses to pay his fare, or to conform
to any lawful regulation of the carrier, may be ejected from the vehicle by the carrier.” OKLA. STAT.
tit. 13, § 45.
Neither party has briefed the question of how the Oklahoma common carrier statute impacts
the existence of a protected interest in access to MTTA buses. Instead, in support of his argument
that the right to transportation falls squarely within liberty and property interests created by state
law, plaintiff relies primarily on Wayfield v. Town of Tisbury, 925 F. Supp. 880 (D. Mass. 1996).
Dkt. # 93, at 6-10. In Wayfield, the court held that the plaintiff had a protected interest in access to
a local library because “it seems likely that when a state holds out a right to citizens to engage in an
activity on equal terms with others, a state-recognized status exists.” Id. at 884. The Wayfield court
concluded that it was more likely that “library access is intended to be open to all persons who meet
10
prescribed standards than it is treated as discretionary by a supervisory board,” and that, therefore,
suspension of library privileges involved a protected interest. Id. at 885. Defendants argue that
Wayfield is distinguishable because, unlike the claim of entitlement that comes with a library card,
Brown had no “license or prior privilege to use public transportation.” Dkt. # 101, at 11. Although
the parties vigorously debate the implications of Wayfield, the Court does not find the case, based
mostly on vague language from a First Circuit opinion regarding a different due process issue, to
be persuasive.
More relevant is Ward, where, under facts very similar to this one, another district court
found no protected property interest in access to public transportation. 154 F. Supp. 2d at 348-49.
In Ward, a pro se plaintiff brought suit against a regional transit district and employees of the district
for alleged violations of his due process and other rights stemming from the indefinite suspension
of his bus-riding privileges. Id. at 342-345. The defendants claimed that the plaintiff did not have
a property interest in access to bus service. Id. at 347. The court agreed, noting that the plaintiff
had failed to “point to the existence of any state law which would allow him to assert a property
interest in fixed route bus service.” Id. at 348. Moreover, because the court found no cases
suggesting that the plaintiff could bring a claim against a common carrier for refusing service, it
concluded that the plaintiff had no “basis in either statutory law or common law to assert a claim
against [the defendant] for denying him bus service based on its designation as a common carrier.”
Id. at 349. Therefore, it found that the plaintiff had not asserted a protected interest, and was not
entitled to any process prior to the suspension of his right to ride the defendant’s buses. Id.; see also
Royster v. Brown, No. 3:07cv54/MCR/MD, 2007 WL 2376261, at * 1, * 5 n.3 (N.D. Fla. Aug. 14,
2007)(noting that plaintiff was advised “that his interest in public transportation was not a protected
11
liberty or property interest,” and that the court had found no cases “in which exclusion from public
transportation was held to violate the rider’s liberty interests”); Stamm v. New York City Transit
Auth., No. 04-CV-2163 (SLT), 2006 WL 1027142, at * 9 (E.D.N.Y. Feb. 7, 2006)(noting that
“[p]laintiff has not cited to any cases in which exclusion from public transportation was held to
violate the rider’s liberty interests” and distinguishing statement in United States v. Madison, 744
F. Supp. 490 (S.D.N.Y. 1990) that removal from a bus could violate a passenger’s “liberty interest
in interstate travel” in part because the buses at issue were city buses); Rodriguez-Sanchez v.
Besner, No. 04-392-LI, 2005 WL 878587, at * 5 (D. Or. April 13, 2005)(holding that intentional
exclusion of plaintiff from public transit for a month would not “touch on a fundamental right or rise
to the level of other substantive due process violations courts have found”); but see Manbeck v.
Katonah-Lewisboro School Dist., 403 F. Supp. 2d 281 (S.D.N.Y. 2005)(noting that, if plaintiff had
been legally admitted to school, her argument that she was entitled to a Due Process interest in
public transportation “might have merit”).
However, while analogous, neither Ward nor other cases cited above involved a state law
similar to the Oklahoma common carrier statute. There is no law from either Oklahoma state or
federal courts regarding the discretion available to a common carrier in the exercise of its duties.
Generally, where “[a] decisionmaker is not required to base its decisions on objective and defined
criteria, but instead can deny the requested relief for no reason at all,” the State has not created a
constitutionally protected interest. Olim v. Wakinekona, 461 U.S. 238, 249 (1983)(internal
quotations omitted). In contrast, where a state statute places substantive restrictions on the
discretion of a government agency, a property interest is created. Hennigh v. City of Shawnee, 155
F.3d 1249, 1254 (10th Cir. 1998). In other words,
12
[In] all government benefit/due process cases, the inquiry must focus on the
legitimate expectations of the party seeking the government benefit. If the
government is afforded broad discretion in conferring the benefit, and articulates
reasons for denying the benefit within that discretion, then a plaintiff cannot prevail
in establishing a constitutionally protected property interest. However, where the
government’s discretion is limited by law and the government acts outside that
limitation, or where the government’s articulated reason for denying the benefit is
without basis in law . . . then a plaintiff may assert an entitlement sufficient to
support a constitutional claim.
RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 922-23 (2d Cir.
1989)(Garth, J., dissenting). Courts look to whether state law has created an “entitlement for
persons qualified to receive them” that may be terminated only “for cause” or based on other
specified reasons. Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 11-12 (1978);
Goldberg v. Kelly, 397 U.S. 254, 262 (1970).
The Oklahoma common carrier statute falls somewhere between the two poles of absolute
discretion and obligation to provide service where passengers meet certain statutory requirements.
On the face of the statute, MTTA, as a common carrier, must “accept and carry whatever is offered
to [it].” OKLA. STAT. tit. 13, § 5. However, passenger carriers “may make rules for the conduct of
[their] business,” subject to the requirements that they be lawful, public, uniform in application, and
reasonable. OKLA. STAT. tit. 13, § 43. The question is therefore to what extent OKLA. STAT. tit. 13,
§ 43 alters the entitlement to service set out in OKLA. STAT. tit. 13, § 5. Although it has not
considered the question in a hundred years, the Oklahoma Supreme Court has previously recognized
that the power of common carriers to make reasonable rules regarding the conduct of their business
includes the power to exclude passengers from service. Chicago, R.I. & P. Ry. Co v. Armstrong,
120 P. 952 (Okla. 1911)(“While it may be said that by opening the doors to its depots, the [railway]
company gives an implied license to any and all persons to enter . . . said license is revocable in its
13
nature . . . . [the] company . . . is not bound to admit to its depot and station grounds those who
refuse to obey the company’s reasonable rules and regulations, or who are guilty of gross and vulgar
habits or conduct, or who make a disturbance, or are turbulent and troublesome, or those under the
influence of liquor, who interfere with the agency and employ[ee]s of the company in the discharge
of their work, or whose reputation for honesty is bad, and which facts are known to the agents and
employ[ee]s at the time”). The language of the statute has not changed in the last century, and it
appears that Oklahoma courts would construe the constraints imposed on common carriers regarding
rules of conduct to be primarily limited to reasonableness. Such limits on discretion are insufficient
to support a property interest. See, e.g., . Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, Kan.,
927 F.2d 1111, 1116 (10th Cir. 1991)(“the state law’s requirement that zoning decisions be
reasonable . . . is insufficient to confer . . . a legitimate claim of entitlement”).
The freedom of common carriers to make rules regarding the conduct of their business
appears to modify the mandate that they accept and carry whatever is offered to it. Although the
MTTA lacks the absolute discretion to refuse service to individuals for “no reason at all,” there are
no substantive limits that dictate a particular outcome where it seeks to exclude a passenger based
on violations of its rules of conduct. And while the MTTA’s regulations regarding the rules of
conduct are not before the Court, whether such regulations exist and in what form is irrelevant for
purposes of assessing the constitutional interest. Because the MTTA has the “discretion to change
the terms and conditions” of its rules of conduct, Brown had “at best a unilateral expectation”
regarding his ability to continue as a passenger of MTTA. Fed. Lands Legal Consortium ex rel.
Robart Estate v. United States, 195 F.3d 1190, 1200 (10th Cir. 1999). In light of the lack of
substantive restrictions on rules that may limit to whom a common carrier extends service, the
14
common carrier statute may be best viewed as an antidiscrimination statute that gives to all
individuals the initial opportunity to comply with the carrier’s terms of service. See, e.g., Ripley
v. Wyoming Med. Center, Inc., 559 F.3d 1119, 1124-25 (10th Cir. 2009)(finding that state statute
that state hospitals “shall be open for practice to doctors,” but that “hospitals by appropriate bylaws
shall promulgate reasonable and uniform rules and regulations covering staff admissions and staff
privileges” created at most the right to be considered for admission to hospital medical staffs, and
citing with approval Tenth Circuit opinion that found the statute to be “simply an antidiscrimination
statute” with regard to the degrees held by professionals). Indeed, common carriers have long been
under the obligation to “extend to all without discrimination the use of their services.” Cuomo v.
Clearing House Ass’n, LLC, 129 S. Ct. 2710, 2725 (2009)(citing Bell v. State of Md., 378 U.S. 226
(1964)). However, a nondiscrimination mandate alone is insufficient to create a protected property
interest in a government benefit. Ripley, 559 F.3d at 1124-25. Therefore, individuals cannot claim
a “legitimate claim of entitlement” to access to MTTA buses.4 Hennigh, 155 F.3d at 1254.
Willard attests that the decision to ban plaintiff was “made by MTTA pursuant to MTTA’s
published and written rules against any fighting, throwing of any objects, pushing, rough or loud
behavior or vulgar language and pursuant to MTTA’s policy to ensure that their customers have a
safe and enjoyable ride.” Dkt. # 94-4, at 2. Based on the Court’s reading of OKLA. STAT. tit. 13,
§ 43, MTTA had the power to make such rules, and to exclude from service those who did not
comply with them. Whether such rules were “lawful, public, uniform in their application, and
4
The Court previously dismissed plaintiff’s claims alleging the violation of Department of
Transportation regulations or procedures. Dkt. # 18, at 13. However, even assuming that,
as plaintiff alleges, those provisions create a right to a grievance process against MTTA,
Dkt. # 30, at 33, it is well-established that the right to process alone, without a mandated
outcome, does not create a property right. See Ripley, 559 F.3d at 1124-25.
15
reasonable,” and sufficiently spelled out the consequences of plaintiff’s behavior, could potentially
raise a question as the legality of the rules under state law. However, it does not create a
constitutionally protected property interest under federal law. Therefore, summary judgment on
Brown’s due process claims is granted in favor of defendants.
B.
Equal Protection
Brown also claims that MTTA and the employee defendants violated his rights to equal
protection under the Fourteenth Amendment. “The Equal Protection Clause requires the government
to treat similarly situated people alike.” Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1988).
Thus, “to assert a viable equal protection claim, plaintiffs must first make a threshold showing that
they were treated differently from others who were similarly situated to them.” Id.
In support of his claim that defendants violated his equal protection rights, Brown alleges
that MTTA has an “established policy and custom” of harassing and intimidating African-American
and Native American passengers at the Denver Avenue bus terminal, Dkt. # 1, at 7, and that he was
banned from MTTA buses due to a racially discriminatory policy. However, while he makes broad
accusations of racial bias, he has provided no evidence that would support a claim that he was
treated differently than other similarly situated individuals, or that such treatment was pursuant to
16
a policy or custom on the part of MTTA.5 Similarly, he has proffered no evidence that would raise
a genuine issue of material fact as to disparate treatment on the basis of race by any of the individual
defendants.6 Therefore, there is no genuine issue of material fact as to his equal protection claim,
and summary judgment is granted in favor of MTTA as to plaintiff’s equal protection claim
IV.
Plaintiff has filed a Motion to Cite and Sanction Defendants for Aggravated Perjury (Dkt.
# 115). In it, he states that defendants’ summary judgment motion and an affidavit by Eppler
attached thereto establish that Eppler did not participate in the ban of Brown from MTTA buses.
Because Willard testified at the hearing on plaintiff’s motion for preliminary injunction that the
decision to ban plaintiff was made by Eppler and two other MTTA employees, Brown argues that
“there has to be perjury” on the part of Eppler and/or Willard. Dkt. # 115, at 2. He argues that the
alleged perjury “constitutes aggravated perjury in contradiction to 18 U.S.D.A.[sic] [§] 1623(a),”
and that Eppler and/or Willard should consequently be cited and sanctioned for aggravated perjury,
5
The only evidence provided by Brown regarding his equal protection claims are:
unsupported allegations in his pleadings of racism; a document signed by other citizens who
“have been and eyewittnessed [sic] the form of transgression and harassment[,] oppression[,]
and forced detention of this security guard [Eppler] at the city bus stop,” Dkt. #1, at 12;
testimony by Samuel Hill, another African-American man banned from riding the bus, Dkt.
# 30, at 52-61; and an affidavit by plaintiff regarding perceived unequal treatment. Dkt. #
113, at 2. At only one point does plaintiff provide an assumed comparison of the treatment
of a Caucasian man with that of a similarly situated African-American man. Dkt. # 113, at
3. However, such assumptions by plaintiff are insufficient to raise a genuine issue of
material fact as to disparate treatment. Moreover, he fails completely to provide any
evidence that Caucasian passengers engaging in conduct similar to his own were not
subjected to bans from MTTA buses. Thus, his pleadings are insufficient to raise a genuine
issue of material fact as to whether Brown was harassed and banned from MTTA buses
because of his race.
6
Plaintiff’s evidence in this regard again consists of blanket assertions of racial bias, without
any supporting evidence or comparison to similarly-situated persons.
17
or an order to show cause should be issued as to why they should not be charged with aggravated
perjury.
Plaintiff’s motion cites to 18 U.S.C. § 1623, a criminal statute regarding false testimony, and
he asks that Eppler and/or Willard have perjury proceedings instituted against them. He also asks
for general sanctions to be imposed against Eppler and Willard. “Perjury occurs when a witness
testifying under oath or affirmation gives false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Flonnory, 630 F.3d 1280, 1287 (10th Cir. 2011). Here, plaintiff has
made no showing that Willard’s statement at the preliminary injunction hearing that Eppler was
involved in the decision to ban plaintiff from MTTA buses was willfully made with the intent to
provide false testimony, and that it was not merely the result of confusion or mistake. Minor
discrepancies in testimony that may be attributable to mistake do not warrant the extreme sanctions
of perjury, and plaintiff’s motion is denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion of Partial Summary Judgment
(Dkt. # 93) is denied; Defendants’ Motion for Summary Judgment and Brief in Support (Dkt. # 94)
is granted.
IT IS FURTHER ORDERED that plaintiff’s Motion to Cite and Sanction Defendants for
Aggravated Perjury (Dkt. ## 115, 116) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Renew Scheduling Order Deadlines
(Dkt. # 125), plaintiff’s Motion for Extension of Time to File Pretrial Disclosures (Dkt. # 127), and
Defendants’ Motion to Strike Plaintiff’s Motion to Renew Scheduling Order Deadlines (Dkt. # 134)
are moot. All other pending motions (Dkt. ## 121, 126, 130) are also moot.
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IT IS FURTHER ORDERED that this is a final order terminating this case and a separate
judgment will be entered herewith.
DATED this 19th day of April, 2011.
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