Marsh v. Long et al
Filing
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OPINION AND ORDER by Judge James H Payne re: first cause of action ; granting 5 Motion to Dismiss for Failure to State a Claim (pll, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
RANDALL MARSH,
Plaintiff,
v.
(1) DEPUTY DAVID LONG, in his
individual and official capacity,
(2) VIC REGALADO, SHERIFF OF
TULSA, in his official capacity
Defendants.
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Case No. 15-CV-708-JHP-PJC
OPINION AND ORDER
Before the Court is Defendant Sheriff Vic Regalado’s1 partial Motion to Dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 5).2 For the reasons explained below, the
Motion to Dismiss is GRANTED.
BACKGROUND
According to the Complaint, on September 8, 2010, Plaintiff Randall Marsh was stopped
in his vehicle on the side of Highway I-44 in Tulsa, Oklahoma. (Doc. No. 2, ¶ 10). Defendant
Deputy David Long with the Tulsa County Sheriff’s Department approached Plaintiff’s stopped
vehicle pursuant to a burglary investigation and contacted Plaintiff. (Id. ¶ 11). When Plaintiff
broke off contact and began to drive away, Deputy Long drew his firearm and shot into Plaintiff’s
vehicle, striking him in the shoulder. (Id. ¶ 12). Plaintiff alleges this use of deadly force was
unjustified and violated his rights.
1
In accordance with Federal Rule of Civil Procedure 25(d), current Tulsa County Sheriff Vic Regalado has been
substituted as the proper party to this action.
2
Although Defendant Sheriff Vic Regalado styles his motion as a “Motion to Dismiss” rather than a partial motion to
dismiss, the motion addresses only one of the two claims asserted against Sheriff Regalado.
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Plaintiff further alleges Deputy Long falsely reported that Plaintiff attempted to strike him
with his vehicle. (Id. ¶ 14). As a result of Deputy Long’s report, Plaintiff was arrested and charged
with assault and battery with a dangerous weapon, although the charge was later dismissed. (Id.).
Plaintiff alleges there was an independent eye-witness to the shooting incident who contradicted
Deputy Long’s description of events. (Id. ¶ 15).
Specifically, the eye-witness reported that
Deputy Long was clearly in a safe position away from Plaintiff’s vehicle when he shot at it. (Id.).
Defendant Sheriff Vic Regalado held an inquiry into the use of deadly force by Deputy Long, but
he ignored the eye-witness’s version of events and found the use of force to be justified. (Id.).
Plaintiff asserts two causes of action against Sheriff Regalado in his official capacity: (1)
violation of his federal civil rights pursuant to 42 U.S.C. § 1983 (First Cause of Action), and (2)
respondeat superior liability under Article 2 § 30 of the Oklahoma Constitution (Second Cause of
Action). Sheriff Regalado now moves to dismiss the § 1983 claim against him pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Doc. No. 5).
DISCUSSION
In considering a Rule 12(b)(6) motion, the court must accept all well-pleaded allegations
of the complaint as true, and must construe them in the light most favorable to the plaintiff. See
Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008). 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Tenth Circuit has stated that “plausibility” in this context refers “to the scope of the allegations
in the complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to
plausible.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550
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U.S. at 569). This “facial plausibility” standard explicitly replaced the historic “no set of facts”
standard. Twombly, 550 U.S. at 563. The plaintiff bears the burden to frame “a complaint with
enough factual matter (taken as true) to suggest” that he or she is entitled to relief. Twombly, 550
U.S. at 556. “A pleading that offers ‘labels and conclusions’ or a formulaic recitation of the
elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555, 557).
Sheriff Regalado argues the § 1983 claim should be dismissed, because Plaintiff’s
Complaint makes only vague, conclusory, and boilerplate allegations against him and fails to
specify which federal constitutional violation he asserts Sheriff Regalado violated. (See Doc. No.
2, ¶¶ 17-19). Specifically, Sheriff Regalado argues the “official capacity” claim under § 1983
fails, because Plaintiff fails to identify any official policy or custom that caused Plaintiff’s
constitutional deprivation. See Bd. Of Cnty. Com’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397,
403 (1997). Plaintiff argues the allegations in the Complaint are sufficient to allege the Sheriff’s
office developed a municipal policy or custom that was the moving force behind the alleged Fourth
Amendment violations.
To state an “official capacity” claim under 42 U.S.C. § 1983, a plaintiff must prove: “(1)
that a municipal employee committed a constitutional violation, and (2) that a municipal policy or
custom was the moving force behind the constitutional deprivation.” Myers v. Okla. County Bd.
of County Com’rs, 151 F.3d 1313, 1316 (10th Cir. 1998) (citing Monell v. Dep’t of Social Servs.,
436 U.S. 658, 694 (1978)). “‘[A] plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between the municipal
action and the deprivation of federal rights.’” Dodds v. Richardson, 614 F.3d 1185, 1202 (10th
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Cir. 2010) (quoting Brown, 520 U.S. at 404). A policy must be a “policy statement, ordinance,
regulation, or decision officially adopted and promulgated by a municipality’s officers.” Lankford
v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996) (quoting Starrett v. Wadley, 876 F.2d 808,
818 (10th Cir.1989)) (quotation and alteration marks omitted). A custom must be a practice that
is “persistent and widespread.” Id. (quoting Starrett, 876 F.2d at 818). Generally, “allegations of
an isolated incident are not sufficient to show the existence of a custom or policy.” Fraire v. City
of Arlington, 957 F.2d 1268, 1278 (5th Cir.1992). A plaintiff who has alleged a failure to act must
demonstrate the municipality’s inaction resulted from “deliberate indifference” to the rights of the
plaintiff. City of Canton v. Harris, 489 U.S. 378, 389 (1989). “Deliberate indifference” is a
stringent standard which demands proof that a municipal actor “disregarded a known or obvious
consequence of his actions,” and “[a] showing of simple or even heightened negligence will not
suffice.” Bryan Cnty., 520 U.S. at 407 410.
Here, the Court concludes the Complaint fails to allege sufficient facts upon which a fact
finder could plausibly determine that Sheriff Regalado promulgated an official policy or custom
that violated the Constitution. Although, as Plaintiff points out, the Complaint does specifically
allege violation of Plaintiff’s Fourth Amendment rights to be free from unreasonable search and
seizure and unjustified use of deadly force (Doc. No. 2, ¶ 3), Plaintiff fails to tie this allegation to
any official policy or custom promulgated by Sheriff Regalado. Instead, Plaintiff falls back on
unsupported boilerplate allegations, which are plainly inadequate under the Twombly/Iqbal
pleading standard. (See Doc. No. 2, ¶ 18.v-ix). (alleging that the Tulsa County Sheriff’s Office
established a policy, practice, and custom of “omit[ting] and/or fail[ing] to provide training and
supervision regarding the lawful use of deadly force and probable cause to arrest,” and of “failing
to discipline officers who violate the Constitutional rights of the very citizens they are sworn to
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protect.”). In his Response brief, Plaintiff argues the Complaint “has sufficiently alleged that
Sheriff [Regalado] was responsible for several such policies or customs which were the moving
force behind the Fourth Amendment violations,” (Doc. No. 17, at 10), but the Complaint does not
provide any facts describing these alleged policies or customs, which renders the Complaint
facially inadequate.
Plaintiff’s most specific allegation against Sheriff Regalado is that he failed to discipline
Deputy Long for his actions in shooting Plaintiff, despite eye-witness evidence indicating the use
of deadly force was unjustified. (Doc. No. 2, ¶ 15). However, Plaintiff does not allege any facts
suggesting that this incident represented a persistent or widespread practice or an official policy.
Even taken as true, Plaintiff’s allegation of a single incident of failure to discipline does not amount
to an official custom or policy. See Fraire, 957 F.2d at 1278. Nor does the Complaint’s general
description of Sheriff Regalado’s failure to discipline Deputy Long raise a plausible inference that
Sheriff Regalado deliberately deprived Plaintiff of his constitutional rights. See Robbins, 519 F.3d
at 1247 (“allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.”). Without more, Plaintiff has not plausibly alleged Sheriff
Regalado’s actions or omissions “may fairly be said to represent official policy.” Monell, 436 U.S.
at 694. Accordingly, dismissal of the § 1983 claim against Sheriff Regalado is proper.
CONCLUSION
For the foregoing reasons, Defendant Sheriff Vic Regalado’s partial Motion to Dismiss
(Doc. No. 5) is hereby GRANTED. Plaintiff’s First Cause of Action is dismissed without
prejudice as to Defendant Sheriff Regalado. Plaintiff’s Second Cause of Action against Defendant
Sheriff Regalado remains for resolution.
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