Chammat v. Fallis et al

Filing 25

OPINION AND ORDER by Judge John E Dowdell The Motion to Dismiss of Officers Fallis and Stege (Doc. 9) is granted. Plaintiff's § 1983 false arrest claim is hereby dismissed. Defendants Fallis and Stege are directed to file an answer t o plaintiff's complaint within 21 days of the date of this Opinion and Order. The parties are also directed to file a second joint status report by that same deadline, which states, in particular, how much time is required for any remaining dis covery to be completed. The Court will enter a scheduling order at that time. ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 3/31/2014); granting 9 Motion to Dismiss (Re: 2 Complaint ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
HUSSAM CHAMMAT,

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Plaintiff,
v.
ROBERT K. FALLIS and
HARRY G. STEGE,
Defendants.

Case No. 13-CV-206-JED-PJC

OPINION AND ORDER
The Court has for its consideration the Motion to Dismiss of Officers Fallis and Stege
(Doc. 9).

Officers Fallis and Stege (“defendants”) seek dismissal of plaintiff Hussam

Chammat’s claims for false arrest on the basis of his no contest plea to the state court criminal
charges for which he was arrested by defendants.
BACKGROUND
Plaintiff is a taxi driver. On or about February 16, 2012, plaintiff was in his taxi waiting
in line at a taxi stand in front of the BOK Center in Tulsa, Oklahoma. Some individuals
approached plaintiff’s taxi seeking his services. Plaintiff alleges that, because he was waiting to
pick up customers with whom he had a long-established relationship, he turned away the
individuals seeking his services. Officer Fallis, with the Tulsa Police Department, approached
plaintiff’s taxi and inquired as to why he had turned down the individuals, as Tulsa taxicab
ordinance does not permit taxi drivers to turn down fares unless they are answering a previous
request for service.

Plaintiff alleges that he attempted to explain that he was picking up

customers he had dropped off at the event. At that time, plaintiff received a call from his
customers, who stated that they would be at his taxi momentarily. Plaintiff further alleges that

Fallis then became verbally abusive, at which time Officer Stege, also with the Tulsa Police
Department, appeared. Plaintiff states that he attempted to hand his phone to Stege to permit him
to speak with his customer, but Stege instead hit plaintiff in the shoulder and dragged him from
the vehicle. Plaintiff was then handcuffed and, while being taken to the defendants’ squad car,
he says he fell and could not regain his footing. Plaintiff states that, instead of helping him
stand, Stege pepper sprayed plaintiff. Plaintiff further states that many witnesses began to take
notice and disapprove of the defendants’ conduct, but were told by Fallis not to take pictures or
videos of the incident. Plaintiff was then taken to jail and charged with violation of the taxicab
ordinance, resisting arrest, and obstruction.1
Plaintiff brought the instant lawsuit against Fallis and Stege, alleging claims pursuant to
42 U.S.C. § 1983. While it is not entirely clear from plaintiff’s complaint, he appears to allege
claims for false arrest, unlawful search and seizure, and excessive force. Fallis’ and Stege’s
motion to dismiss seeks only dismissal of plaintiff’s false arrest claim. Fallis and Stege argue
that, because plaintiff has now entered a plea of nolo contendere (“no contest”) to the underlying
criminal charges at issue, he has established probable cause for the arrest and his false arrest
claim is therefore barred.2

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The remainder of the allegations in plaintiff’s Complaint (Doc. 2) relates to his treatment at the
jail by defendants Tabitha Dean and Allen Ewing. Given that Dean and Ewing have been
dismissed by joint stipulation, these allegations do not warrant recitation here.
2

Defendants attach to their motion to dismiss the pleas entered by plaintiff and ask the Court to
take judicial notice of these documents as public records. Ordinarily, consideration of material
attached to a defendant's dismissal motion requires the court to convert the motion into one for
summary judgment. Fed.R.Civ.P. 12(b); David v. City & County of Denver, 101 F.3d 1344,
1352 (10th Cir. 1996). “However, facts subject to judicial notice may be considered in a Rule
12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment.”
Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006) (citing Grynberg v. Koch Gateway
Pipeline Co., 390 F.3d 1276, 1278 n. 1 (10th Cir. 2004)). As such, the Court can take judicial
notice of “facts which are a matter of public record”, such as plaintiff’s no contest pleas. Id.
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STANDARDS
In considering a Rule 12(b)(6) dismissal motion, a court must determine whether the
plaintiff has stated a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The
Federal Rules of Civil Procedure require “a short and plain statement of the claim to show that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must provide “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The standard does “not require a

heightened fact pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face,” and the factual allegations “must be enough to raise a right to relief above
the speculative level.” Id. at 555-56, 570 (citations omitted). “Asking for plausible grounds . . .
does not impose a probability requirement at the pleading stage; it simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence [supporting the claim].
And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’” Id. at 556.
“Once a claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 562.
Twombly articulated the pleading standard for all civil actions. See Ashcroft v. Iqbal, 556
U.S. 662, 684 (2009). For the purpose of making the dismissal determination, a court must
accept all the well-pleaded factual allegations of the complaint as true, even if doubtful, and must
construe the allegations in the light most favorable to the claimant. See Twombly, 550 U.S. at
555; Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

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DISCUSSION
Defendants ask the Court to dismiss plaintiff’s false arrest claim as a result of his no
contest pleas to the charges for which he was arrested. Defendants argue that this Court must
give preclusive effect to those pleas and find that probable cause for plaintiff’s arrest has been
conclusively established.
A claim for false arrest necessarily requires proof that the arresting officer lacked
probable cause to make the arrest. See, e.g., Smith v. Barber, 316 F. Supp. 2d 992, 1021 (D.
Kan. 2004) (“A false arrest claim will fail where probable cause exists for at least one of the
charges against a plaintiff in a § 1983 case.”). Oklahoma preclusion rules apply to plaintiff’s §
1983 false arrest claim. See Franklin v. Thompson, 981 F.2d 1168, 1170-71 (10th Cir. 1992). In
Jackson v. Loftis, 189 F. App’x 775, 779 (10th Cir. 2006), the Tenth Circuit explained the effect
of a no contest plea under Oklahoma law on a subsequent claim of false arrest:
[A] plea of nolo contendere to criminal charges, and the consequent adjudication
of guilt thereon, estop the defendant from later disputing the validity of those
charges as a basis to deny the existence of probable cause for his arrest. Irwin v.
SWO Acquisition Corp., 830 P.2d 587, 590 (Okla.App.1992); see Delong, 956
P.2d at 938-39 (reaffirming Irwin). There is a proscription on the use of nolo
contendere pleas in subsequent civil proceedings, see Okla. Stat. Ann. tit. 12, §
2410, and Okla. Stat. Ann. tit. 22, § 513, but it applies only to “ ‘offensive’ use ...
to establish the criminal defendant's subsequent potential civil liability, not to ...
‘defensive’ use ... in a case where the criminal defendant [has] sought to recover
damages for an alleged unlawful arrest.” Delong, 956 P.2d at 938 (following
Irwin, 830 P.2d at 590).
(footnote omitted).
Pursuant to Oklahoma law, plaintiff is now barred from challenging the validity of his
arrest for the crimes to which he has entered a plea of no contest. Plaintiff’s allegation that his
arrest was, at least in part, motivated by race does not change this outcome. As the Tenth Circuit
noted in Jackson, such assertions of racist motivation on the part of an arresting officer “do not

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render his conduct unconstitutional. The Supreme Court rejected ‘the principle that ulterior
motives can invalidate police conduct that is justifiable on the basis of probable cause to believe
that a violation of the law has occurred.’” Id. at 780 (quoting Conrod v. Davis, 120 F.3d 92, 96
(8th Cir. 1997)); see also Whren v. United States, 517 U.S. 806, 811 (1996)). Accordingly,
plaintiff’s claims against Fallis and Stege for false arrest under § 1983 are subject to dismissal.
IT IS THEREFORE ORDERED that the Motion to Dismiss of Officers Fallis and
Stege (Doc. 9) is granted. Plaintiff’s § 1983 false arrest claim is hereby dismissed.
IT IS FURTHER ORDERED that Defendants Fallis and Stege are directed to file an
answer to plaintiff’s complaint within 21 days of the date of this Opinion and Order. The parties
are also directed to file a second joint status report by that same deadline, which states, in
particular, how much time is required for any remaining discovery to be completed. The Court
will enter a scheduling order at that time.
ORDERED this 10th day of March, 2014.

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