Singer v. Steidley et al

Filing 78

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; denying 31 Motion to Dismiss (srt, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

JOHN F. SINGER, an individual
Plaintiff,
v.
JANICE STEIDLEY and M. BRYCE LAIR,
Defendants.

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Case No. 13-CV-72-GKF-TLW

OPINION AND ORDER
Before the court is the Motion to Dismiss the Third, Fourth and Fifth Claims for Relief of
Plaintiff’s First Amended Complaint [Dkt. #31] filed by defendants Janice Steidley (“Steidley”)
and M. Bryce Lair (“Lair”).
I. Background/Procedural History
Plaintiff John F. Singer (“Singer”), a Claremore Police Department (“CPD”) investigator,
filed suit against Steidley, the District Attorney for District #12 (Craig, Mayes and Rogers
Counties), State of Oklahoma, and Lair, the First Assistant District Attorney for the district, on
February 4, 2013. [Dkt. #2]. His complaint alleged Steidley and Lair manufactured evidence that
he had lied in sworn statements concerning a criminal investigation 18 months earlier, and then
reported the alleged misconduct to law enforcement officials, courts and criminal defense
attorneys, purportedly pursuant to United States v. Giglio, 405 U.S. 150 (1972) . Singer asserted
claims for violation of his First Amendment rights of free speech and association; violation of his
Fourteenth Amendment property and liberty interests; exemplary damages; declaratory
judgment; and injunctive relief.

Defendants moved to dismiss the Complaint. [Dkt. #14]. The court granted the motion
in part and denied it in part, dismissing Singer’s second claim for relief for violation of his
Fourteenth Amendment rights based on defendants’ qualified immunity; his fifth claim for relief
for declaratory judgment; his sixth claim for relief for an injunction; and his first claim for relief
for violation for his First Amendment rights, to the extent it alleged disclosures to the U.S.
Attorney and defense attorneys in the Rogers County criminal cases. [Dkt. #19 at 19]. The
motion was denied with respect to disclosures made to police chiefs, the criminal defense
attorney website and the Claremore newspaper. [Id.]. The court also denied the motion with
respect to the third claim for relief for exemplary damages. [Id.].
With leave of court, Singer filed a First Amended Complaint which added state law
claims for libel, slander and defamation. [Dkt. #30]. Defendants filed a motion to dismiss the
new claims pursuant to Fed. R. Civ. P. 12(b)(6). [Dkt. #31].
II. Allegations of the First Amended Complaint
The factual allegations of the amended complaint are largely identical to those of the
original complaint, and the court—having summarized those allegations in its order on
defendants’ motion to dismiss the original complaint—will not repeat them in their entirety.
Importantly, for purposes of the pending motion, the First Amended Complaint makes the
following factual allegations:


Singer is an investigator for the Claremore Police Department, a commissioned
Special Deputy for the United States Marshal’s Service in the Northern District of
Oklahoma, and serves on the Northern Oklahoma Violent Crimes Task Force. He
has been the lead investigator in multiple violent murders and large scale federal
drug conspiracies, and is regularly called upon by other agencies in northeast
Oklahoma to assist in the investigation of major crimes. [First Amended
Complaint, ¶¶7-9].



Singer supported Steidley in her bid for District Attorney for District 12 but after
she took office, he became “a vocal critic” of her performance. [Id., ¶¶12-14]. He
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participated in a background check of a criminal investigator hired by Steidley
and determined the investigator’s background contained a number of issues that
would require disclosure to attorneys defending prosecutions in which he was
involved pursuant to Giglio. [Id., ¶15]. Singer told Steidley he would not work
with any Giglio-impaired investigator or allow him to become involved in any of
his cases, which angered Steidley. [Id., ¶16].


Additionally, in the fall of 2012, Steidley inquired of Singer through an agent
whether Singer’s wife intended on running against her in 2014 for the office of
District Attorney, and soon afterward, made clear that she intended to start her
2014 campaign immediately. [Id., ¶17].



On January 6, 2013, the Claremore Daily Progress published an article that was
critical of Steidley’s performance as a District Attorney with regard to the
prosecution of drug offenses; all of the cases referenced in the article were
investigated by Singer. [Id., ¶18].



Soon thereafter, and as a result of Singer’s criticisms of Steidley’s office, his
participation in the background investigation of the District Attorneys’
investigator, Steidley’s concern that Singer’s wife would run against her for
District Attorney, and defendants’ assumption that Singer was the principal
source of the article, defendants commenced a concerted action to retaliate against
Singer and to intimidate him by destroying his career as a law enforcement
officer, and his reputation with the public and within the law enforcement
community. [Id., ¶20].



“Because of Singer’s exemplary record as a law enforcement officer, Steidley and
Lair decided to manufacture evidence that Singer had acted improperly during the
investigation of one of his cases, and then use this manufactured evidence against
Singer in order to destroy his career and ruin his reputation.” [Id.]. Defendants
chose a case Singer had investigated 18 months before, determined he had acted
improperly and decided the manufactured evidence constituted Giglio material,
and therefore needed to be disclosed to criminal defense counsel in cases
investigated by Singer. [Id., ¶¶20-21].



In January 2013, Steidley and Lair “presented . . . manufactured evidence” to the
chiefs of the CPD and the Pryor Police Department. On January 17, 2013, Lair,
“through his close friend, Josh Lee, disclosed the existence of manufactured
Giglio Material relating to Singer on the Oklahoma Criminal Defense Attorney
Website.” On January 29, 2013, Lair “provided a statement to the Claremore
Daily Progress that Giglio Material existed with regard to Singer, and that the
District Attorneys’ office did not need to have a judicial finding on this issue.” On
January 30, 2013, Steidley provided a lengthy interview to the newspaper
concerning the manufactured Giglio material. [Id., ¶22].

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

“As a result of Defendants’ unlawful and tortious conduct, . . . Singer’s
constitutionally-protected property interest in his employment, good name,
reputation and integrity has been severely and irrevocably damaged.” [Id., ¶23].



“Singer relies on his reputation as a criminal investigator in order to continue his
work with the Claremore Police Department, the United States Marshal’s Office,
and the Northern Oklahoma Violent Crimes Task Force.” [Id., ¶24].



Defendants’ actions in disseminating the alleged Giglio material have harmed and
lowered Singer’s reputation in the public and the law enforcement community.
[Id., ¶25]. He has been informed by his superiors that if the material in question
actually is Giglio material, his employment will be terminated; he has been placed
on modified duty in that he cannot work on any cases or take any action that
would require him to be a witness; all of his pending criminal prosecutions in
state and federal court have been stayed indefinitely; and he is unable to open any
new prosecutions with the U.S. Attorney’s Office. [Id., ¶26]. Additionally, his
effectiveness as an investigator has been and will continue to be severely and
irreparably damaged by the dissemination of the alleged Giglio material because
he will be subject to attacks on his credibility every time he testifies on behalf of
the prosecution in court. [Id., ¶27].



Defendants published falsehoods to third parties without privilege. [Id., ¶28]. The
falsehoods were published by defendants intentionally and with malice, or in the
alternative, with fault amounting at least to negligence on the part of the
defendants. [Id., ¶29]. By words and deeds, defendants have systematically,
intentionally, and with malice attempted to ruin Singer’s reputation and damage
his standing in the community. [Id., ¶30].



The falsehoods are actionable, irrespective of the existence of special harm. [Id.,
¶31]. The falsehoods have harmed and lowered Singer’s reputation in the
estimation of the community, exposed him to public hatred, contempt, ridicule or
obloquy, deprived him of public confidence and injured him in his occupation.
[Id., ¶¶32-35]. The falsehoods tend to and did deter third persons from
associating or dealing with Singer, and caused special harm to him. [Id., ¶¶3637].

The First Amended Complaint reasserts Singer’s claims for violation of his First
Amendment right to free speech and association and exemplary damages, and it adds claims for
defamation (Third Claim for Relief), libel (Fourth Claim for Relief) and slander (Fifth Claim for
Relief). [Id. at 8-10].

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III. Applicable Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
The United States Supreme Court clarified this standard in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007), ruling that to withstand a motion to dismiss, a
complaint must contain enough allegations of fact “to state a claim to relief that is plausible on
its face.” 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 622, 633 (2009). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (internal quotations omitted). On a motion to dismiss, courts “are not
bound to accept as true a legal conclusion couched as a factual allegation.” Id. Under the
Twombly standard, “the complaint must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these claims.” Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007)) (emphasis in original). “The burden is on the plaintiff to frame a
complaint with enough factual matter (taken as true) to suggest that he or she is entitled to
relief.” Id. at 1247 (citing Twombly, 127 S.Ct. at 1965) (internal quotations omitted). “Factual
allegations must be enough to raise a right to relief above the speculative level.” Id.
The Tenth Circuit Court of Appeals has interpreted Twombly as a middle ground between
“heightened fact pleading,” which is expressly rejected, and allowing complaints that are no

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more than “labels and conclusions,” which courts should not allow. Id. at 1247 (citing Twombly,
127 S.Ct. at 1964, 1965, 1974). Accepting the allegations as true, they must establish that the
plaintiff plausibly, and not just speculatively, has a claim for relief. Id. “This requirement of
plausibility serves not only to weed out claims that do not (in the absence of additional
allegations) have a reasonable prospect of success, but also to inform the defendants of the actual
grounds of the claim against them.” Id. at 1248. The Tenth Circuit Court of Appeals instructed
in Robbins that “the degree of specificity necessary to establish plausibility and fair notice, and
therefore the need to include sufficient factual allegations, depends on context . . . [and] the type
of case.” Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008)). A
simple negligence action may require significantly fewer allegations to state a claim under Rule
8 than a case alleging antitrust violations (as in Twombly) or constitutional violations (as in
Robbins). Id.
“When a federal court reviews the sufficiency of a complaint, before the reception of any
evidence either by affidavit or admissions, its task is necessarily a limited one.” Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 511 (2002). The issue on a 12(b)(6) motion “is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support
the claims.” Id. The notice pleading standard “relies on liberal discovery rules and summary
judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Id.
at 512 (2002).
IV. Analysis
A. Slander Claim
“Slander” is statutorily defined as
. . . a false and unprivileged publication, other than libel, which:

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1. Charges any person with crime, or with having been indicted, convicted or
punished for crime;
2. Imputes in him the present existence of an infectious, contagious or loathsome
disease.
3. Tends directly to injure him in respect to his office, profession, trade or
business, either by imputing to him general disqualification in those respects
which the office or other occupation peculiarly requires, or by imputing
something with reference to his office, profession, trade or business that has a
natural tendency to lessen its profit.
4. Imputes to him impotence or want of chastity; or,
5. Which, by natural consequences, causes actual damage.
12 Okla. Stat. § 1442.
As set forth above, Singer has alleged defendants “manufactured” evidence of an alleged
Giglio violation to destroy his career and ruin his reputation and intentionally and maliciously (or
alternatively, negligently) disclosed or “published” the manufactured evidence to the newspaper,
a defense attorneys’ website and the Claremore and Pryor police chiefs in order to destroy
Singer’s career as a law enforcement officer and his reputation both with the public and within
the law enforcement community. Singer alleges the disclosures were not privileged and have
harmed his reputation and standing in the public and law enforcement community, deprived
Singer of public confidence, injured his occupation, deterred third persons from associating or
dealing with him and caused him special harm. He describes in some detail the ways in which
his reputation and employment with the Claremore Police Department have been damaged.
Defendants first argue that plaintiff has failed to allege publication of any false material,
other than in conclusory fashion. However, plaintiff alleges defendants “manufactured
evidence” that Singer acted improperly during the investigation of one of his cases, and then
used this manufactured evidence against Singer . . .” An alternate definition of “manufacture” is

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to “invent, fabricate ˂known to manufacture evidence˃.” Merriam-Webster Online,
www.merriam-webster.com/dictionary/manufacture. Accepting the allegation as true, the First
Amended Complaint sufficiently alleges defendants published false statements, premised on
fabricated evidence, about Singer.
Second, citing Cohlmia v. Ardent Health Services, LLC, 448 F. Supp.2d 1253 (N.D. Okla.
2006), defendants argue that plaintiff has failed to allege in what manner any publication by the
defendants was false, i.e., in what respect was what the defendants are alleged to have published
not true? Cohlmia stands for the state proposition that “the plaintiff must afford defendant
sufficient notice of the communications complained of to enable him to defend himself.” Id. at
1268 (quotation omitted). Like defendants, this court is interested to see the specifics of how the
allegedly “manufactured Giglio material” was false. However, the plaintiff has afforded
defendant sufficient notice in the First Amended Complaint of the communications complained
of to enable defendants to defend themselves, thereby meeting the standard set forth in Cohlmia.
Third, defendants argue the alleged disclosures were nothing more than opinions, and are
therefore not actionable. “As a general rule, statements which are opinionative and not factual in
nature, which cannot be verified as true or false, are not actionable as slander or libel under
Oklahoma law.” Metcalf v. KFOR-TV, Inc., 828 F. Supp. 1515, 1529 (W.D. Okla. 1992) (citing
Miscovsky v. Okla. Publ’g Co., 654 P.2d 587, 593-94 (Okla. 1982)). “However, if an opinion is
stated as or is in the form of a factual imperative, or if an opinion is expressed without disclosing
the underlying factual basis for the opinion, the opinion is actionable under Oklahoma law if the
opinion implies or creates a reasonable inference that the opinion is justified by the existence of
undisclosed defamatory and false facts.” Id. at 1529 (internal quotations omitted). Plaintiff
argues “Defendants’ statements that Singer’s earlier case investigation contained Giglio Material

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supports the reasonable inference that Defendants’ statements were justified by the existence of
undisclosed defamatory and false facts.” This court is unpersuaded. Here, the prosecutor’s
determination that Singer’s prior conduct constituted Giglio material does not necessarily imply
or create such a reasonable inference.
For the purposes of the motion before the court, however, the plaintiff has alleged that
defendants manufactured, i.e., fabricated evidence, that they determined the fabricated evidence
constituted Giglio material, and that their slanderous statements were made “with their
manufactured evidence in hand.” At this stage, Singer’s factual allegations are sufficient to state
a plausible claim for slander.
B. Libel Claim
“Libel” is statutorily defined as
. . . a false or malicious unprivileged publication by writing, printing, picture, or
effigy or other fixed representation to the eye, which exposes any person to public
hatred, contempt, ridicule or obloquy, or which tends to deprive him of public
confidence, or to injure him in his occupation, or any malicious publication as
aforesaid, designed to blacken or vilify the memory of one who is dead, and
tending to scandalize his surviving relatives or friends.
12 Okla. Stat. § 1441.
The First Amended Complaint states a plausible claim for libel to the extent it alleges (1)
Lair “provided a statement” to the Claremore newspaper regarding the allegedly manufactured
Giglio material and (2) Lair, through a close friend, disclosed allegedly manufactured Giglio
material relating to Singer on the Oklahoma Criminal Defense Attorney Website.
C. Defamation Claim
To impose liability for defamation, plaintiff must plead and prove:1

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The court notes that at least one Oklahoma appellate panel has considered a police office to be a “public official”
for the purposes of proving defamation. See Torix v. Brown, 295 P.3d 1138, 1141 (Okla. Civ. App. 2012). If Torix
correctly states Oklahoma law, malice or reckless disregard for the truth would be an additional element.

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1.
2.
3.
4.

A false and defamatory statement;
An unprivileged publication to a third party;
Fault amounting at least to negligence on the part of the publisher; and
Either the actionability of the statement irrespective of special damage, or the
existence of special damage caused by the publication.

Trice v. Burress, 137 P.3d 1253, 1257 (Okla. Civ. App. 2006). Defamation includes both libel
and slander. See Restatement (2d) of Torts § 558 (1977).
As discussed above, Singer’s factual allegations state plausible claims for slander and
libel against defendants. Further, he has alleged that defendants either intentionally or
negligently disclosed false statements to third parties and that the disclosures have harmed his
reputation both with the public and within the law enforcement community.
The allegations of the First Amended Complaint, taken as true, state a plausible claim for
defamation.
Conclusion
For the reasons set forth above, defendants’ Motion to Dismiss the Third, Fourth and
Fifth Claims for Relief of Plaintiff’s First Amended Complaint [Dkt. #31] is denied.
ENTERED this 26th day of November, 2013.

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