Johnson v. City of Tulsa, The et al

Filing 38

OPINION AND ORDER by Judge John E Dowdell ; denying 33 Motion to Amend (Re: 9 Amended Complaint ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
EDWARD EARL JOHNSON,
Plaintiff,
v.
THE CITY OF TULSA; and ERIC HILL,
Defendants.

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Case No. 12-CV-481-JED-FHM

OPINION AND ORDER
Plaintiff requests that the Court permit him to file a Second Amended Complaint adding a
claim under the Oklahoma Constitution, art. 2, § 30, as delineated in Bosh v. Cherokee County
Bldg. Auth., 305 P.3d 994 (Okla. 2013). (Doc. 33). In response, defendant City of Tulsa argues
that the Court should deny the proposed amendment because (1) the conduct of Eric Hill, as
alleged by plaintiff in the Amended Complaint, was not in good faith and thus was not within the
scope of employment and (2) even if plaintiff could state a Bosh respondeat superior claim based
upon conduct within the scope of employment, the statute of limitations ran on any claim under
Bosh. (See Doc. 34).
The conduct alleged in support of plaintiff’s proposed Bosh claim is of a type that is, by
its nature, not taken in good faith. Plaintiff alleges that Hill initiated a traffic stop of the plaintiff,
during which Hill claimed, falsely, that he saw plaintiff throw crack cocaine from his car.
According to plaintiff, Hill knew that plaintiff did not possess cocaine, plaintiff had not thrown
anything, and that plaintiff was innocent, but Hill knowingly filed a false police report which
resulted in plaintiff’s prosecution and conviction. It is hard to fathom how a police officer could
be acting in “good faith” when he knowingly provides false information to support a bogus arrest

and conviction. See Pointer v. City of Tulsa, No. 12-CV-397-JED-PJC, 2014 WL 4244290, **78 (N.D. Okla. Aug. 26, 2014) (unpublished).
In addition, the Court notes that the Oklahoma Supreme Court recently held that a Bosh
claim, “as applied to police officers and other law enforcement personnel, may not be brought
against a municipality when a cause of action under the [Oklahoma Governmental Tort Claims
Act] is available.” Perry v. City of Norman, ___ P.3d ___, 2014 WL 7177263 (Okla. Dec. 16,
2014) (not yet released for publication). The proposed Second Amended Complaint does not
allege that plaintiff was barred from bringing an action under the Oklahoma Governmental Tort
Claims Act for the conduct for which he seeks to add a Bosh claim by amendment.
Accordingly, the Motion to Amend (Doc. 33) is denied.
SO ORDERED this 15th day of January, 2015.

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