Cowan v. Hunter et al
OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; granting 26 Motion to Dismiss for Lack of Jurisdiction; granting 26 Motion to Dismiss for Failure to State a Claim; finding as moot 31 Moti on for Hearing; finding as moot 32 Motion for Leave to File Document(s); finding as moot 34 Motion for Miscellaneous Relief; finding as moot 43 Motion for Judgment as a Matter of Law; finding as moot 44 Motion for Miscellaneous Relief; fi nding as moot 49 Motion for Summary Judgment; finding as moot 52 Motion for Preliminary Injunction; finding as moot 5 Motion for Class Action Certification; finding as moot 5 Motion for Appointment; finding as moot 68 Motion for Hearin g; granting 76 Motion to Dismiss for Failure to State a Claim; granting 78 Motion to Dismiss for Failure to State a Claim; granting 78 Motion to Dismiss for Lack of Jurisdiction; granting 15 Motion to Dismiss for Failure to State a Claim; finding as moot 18 Motion for Miscellaneous Relief; denying 19 Motion to Strike Document(s); denying 19 Motion to Strike Hearing(s)/Deadline(s); finding as moot 20 Motion for Hearing (lmc, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DONALD RAY COWAN,
MIKE HUNTER, ET. AL.,
Case No. 17-CV-324-TCK-FHM
OPINION AND ORDER
Before the Court are the following motions: (1) Plaintiff’s Motion to Strike the Motion to
Dismiss of Tulsa County Sheriff Vic Regalado and Motion to Reset Response Deadlines (Doc.
19)1; (2) Defendant Vic Regalado’s Motion to Dismiss for Failure to State a Claim (Doc. 15); (3)
Defendants Mike Hunter’s and Joe Allbaugh’s Motion to Dismiss for Lack of Jurisdiction and for
Failure to State a Claim (Doc. 26); (4) Defendants Mike Huff’s, Michael Nance’s, Richard
Meulenberg IV’s, and the City of Tulsa’s Motion to Dismiss for Failure to State a Claim (Doc. 76)
(adopting Doc. 26 in toto); and (5) Defendant Steven Kunzweiler’s Motion to Dismiss for Lack of
Jurisdiction and for Failure to State a Claim (Doc. 78). For reasons discussed below, motion (1)
is DENIED and motions (2)-(5) are GRANTED.
Plaintiff moves to strike Defendant Vic Regalado’s Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(f) (“Rule 12(f)”). Rule 12(f) provides that “[t]he court may
strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous material.” However, Rule 12(f) is inapplicable to motions; by its text, it applies only
to “pleadings.” See FED. R. CIV. P. 7(a) (the only “pleadings” allowed are complaints, answers,
and replies to complaints); McNeil v. Post, No. 15-cv-478, 2016 U.S. Dist. LEXIS 69099, at *20
(N.D. Okla. May 26, 2016) (Rule 12(f) cannot apply to motions). Accordingly, Defendant Vic
Regalado’s Motion to Dismiss is not subject to a Motion to Strike pursuant to Rule 12(f) and
Plaintiff’s Motion to Strike and Motion to Reset Response Deadlines (Doc. 19) is DENIED.
Background and Factual Allegations
This case arises out of Plaintiff Donald Ray Cowan (“Plaintiff”)’s past conviction for first
degree manslaughter. At the time of the events leading to his conviction, Plaintiff was employed
as an armed security guard for a Section 8 housing apartment complex. On January 10, 2004,
while performing his duties, Plaintiff, a Caucasian man, shot and killed Ronald Henderson
(“Henderson”), an African-American man.
On January 3, 2005 Plaintiff was charged with one count of first degree manslaughter. On
November 15, 2007, Plaintiff was convicted by jury trial in Tulsa County District Court and
sentenced to four years in the custody of the Department of Corrections.2 He was released on May
17, 2011. Plaintiff filed this action on June 8, 2017. (Doc. 1.) He filed his Amended Complaint
on July 7, 2017 (Doc. 6), naming the following parties as Defendants: Oklahoma Attorney General
Mike Hunter (“Hunter”); District Attorney for Tulsa County Steven Kunzweiler (“Kunzweiler”);
Tulsa Police Detectives Mike Huff (“Huff”), Michael Nance (“Nance”), and Tulsa Police Officer
Richard Gerald Meulenberg IV (“Meulenberg”); City of Tulsa; Sheriff of Tulsa County Vic
Regalado (“Regalado”); and Director of the Oklahoma Department of Corrections Joe Allbaugh
(“Allbaugh”) (collectively, “Defendants”). The Sheriff of Comanche County was also named in
the Amended Complaint but was terminated from this litigation on October 23, 2017. (Doc. 58.)
These dates are noted in the Tulsa County docket. Because the Tulsa County docket is
relevant to both whether the Court has subject-matter jurisdiction in this case, and Plaintiff’s
ability to state a claim upon which relief can be granted, this Court will take judicial notice of the
docket. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“[W]e may
exercise our discretion to take judicial notice of publicly-filed records in our court and certain
other courts concerning matters that bear directly upon the disposition of the case at hand.”); St.
Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (federal courts may
take notice of proceedings in other courts, both within and without the federal judicial system).
Defendants Hunter, Allbaugh, Kunzweiler, Huff, Nance, Meulenberg, and City of Tulsa
have filed motions to dismiss for lack of subject-matter jurisdiction, pursuant to Federal Rule of
Civil Procedure 12(b)(1) (“Rule 12(b)(1)”). Additionally, all Defendants have filed motions to
dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule
Plaintiff is a pro se litigant; accordingly, the Court construes his allegations liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Court can reasonably read the
pleadings to state a valid claim on which the plaintiff would prevail, it should do so “despite the
plaintiff’s failure to cite proper legal authorities, his confusion of various legal theories, his poor
syntax and sentence structure, or his unfamiliarity with pleading requirements.” Id. However, the
Court may not assume the role of advocate for the pro se litigant. See id. Based on the allegations
in Plaintiff’s Amended Complaint (Doc. 6), the Court construes Plaintiff’s causes of action as
As-applied challenge to OKLA. STAT. ANN. tit. 21 sec. § 711, “First Degree Manslaughter,”
under 42 U.S.C. § 1983 (“§ 1983”), for violating the Fourth Amendment and Fourteenth
Amendment, naming Defendants Kunzweiler and Hunter.
As-applied challenge to OKLA. STAT. ANN. tit. 21 sec. § 1289, “Oklahoma Firearm Control
Act of 1971,” under § 1983, for violating the Fourth Amendment and Fourteenth
Amendment, naming Defendants Kunzweiler and Hunter.3
The Court construes the as-applied Constitutional challenges in Claims 1 and 2 as
claims made under § 1983 because they name specific, municipal-level officials, who enforced
these state laws against Plaintiff and caused him to be deprived of his Constitutional rights.
Fourteenth Amendment equal protection violation under § 1983, for singling Plaintiff out
for prosecution based on his race, against Defendant City of Tulsa, Tulsa County and
Defendant Kunzweiler in his individual capacity.
Fourteenth Amendment due process violation under § 1983, for manufacturing and
presenting false circumstantial evidence to enable the city to violate Plaintiff’s Second
Amendment rights, against Defendant City of Tulsa, and Tulsa County.4
Fourth Amendment violation under § 1983, for the unlawful seizure of Plaintiff’s gun,
against Defendants Kunzweiler, Huff, Nance, and Meulenberg.
Fourth Amendment violation under § 1983, for manufacturing evidence to support the
unlawful seizure of Plaintiff’s gun, against Defendants Kunzweiler, Huff, Nance, and
Fourteenth Amendment due process violation under § 1983, for prosecuting Plaintiff for
exercising his Second Amendment rights, against Defendants Kunzweiler, Huff, Nance,
Eighth Amendment violation under § 1983, because going to prison was humiliating,
against Defendants Kunzweiler, Huff, Nance, and Meulenberg.
Plaintiff makes Claims 3 and 4 against Defendants Kunzweiler, Huff, Nance, and
Meulenberg in their official capacity. A § 1983 action against a person in his official capacity is,
in reality, an action against the government entity for whom the person works, provided that the
public entity received notice and an opportunity to respond. See Brandon v. Holt, 469 U.S. 464,
471-72 (1985); Johnson v. Bd. of Cnty. Comm’rs for Cnty. of Fremont, 85 F.3d. 489, 493 (10th
Cir. 1996) (internal citations omitted). Kunzweiler is employed by Tulsa County, while Huff,
Nance, and Meulenberg are employed by the City of Tulsa. All appear to be represented by their
employers’ counsel. Accordingly, the Court may appropriately construe these claims as against
the City of Tulsa and Tulsa County.
Second Amendment violation under § 1983, for failure to supervise and provide proper
training to its police force regarding citizens’ Second Amendment rights, against
Defendant City of Tulsa.5
Fourteenth Amendment due process violation under § 1983 for failure to supervise officers
who manufactured evidence and perjured themselves while under oath, against Defendant
City of Tulsa.
Fourth Amendment violation under § 1983 for seizing Plaintiff’s gun without a property
receipt, against Defendant City of Tulsa.
Defendants’ Motions to Dismiss for Lack of Subject-Matter Jurisdiction
A. Rule 12(b)(1) Standard
This Court has an ongoing, independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from a party. See 1mage Software, Inc. v.
Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006); FED. R. CIV. P. 12(h)(3).
Accordingly, though only some of the defendants have challenged the Court’s subject-matter
jurisdiction, this Court will first evaluate whether it may exercise subject-matter jurisdiction over
all claims in this case. Because federal courts are courts of limited jurisdiction, plaintiffs have the
burden to allege sufficient jurisdictional facts to survive such an inquiry. See McNutt v. General
Motors Acceptance Corp. of Indiana, Inc., 298 U.S. 178, 182 (1936); Montoya v. Chao, 296 F.3d
952, 955 (10th Cir. 2002).
Although Plaintiff does not cite § 1983, the Court construes Claims 9-11 as § 1983
claims because municipalities are “persons” for the purposes of § 1983. See Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978).
Defendants Hunter, Allbaugh, Kunzweiler, Huff, Nance, Meulenberg, and City of Tulsa
contend that Plaintiff’s claims are barred under the Rooker-Feldman doctrine. The RookerFeldman doctrine precludes a losing party in state court who complains of injury caused by the
state-court judgment from bringing a case seeking review and rejection of that judgment in federal
court. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92 (2005). Only
the United States Supreme Court has appellate authority to review a state-court judgment. See id.,
at 283. Accordingly, district courts do not have subject-matter jurisdiction to review or reject
state-court judgments or the injuries they cause. See Rooker v. Fid. Trust Co., 263 U.S. 413, 415
(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983). Rooker-Feldman applies to
both civil and criminal state-court judgments. See id.; see also Market v. City of Garden City, No.
16-3293, 2017 U.S. App. LEXIS 25236, at *7 (10th Cir. Dec. 14, 2017) (unpublished); Erlandson
v. Northglenn Mun. Court, 528 F.3d 785, 790 (10th Cir. 2008).
The Rooker-Feldman doctrine applies to both (1) federal claims actually decided by a state
court and (2) federal claims inextricably intertwined with a state-court judgment, such that an
element of the claim is that the state court wrongfully entered its judgment. See Campbell v. City
of Spencer, 682 F.3d 1278, 1282-83 (10th Cir. 2012); Merrill Lynch Bus. Fin. Servs. v. Nudell,
363 F.3d 1072, 1075 (10th Cir. 2004). The Rooker-Feldman doctrine, however, does not extend
to actions in federal court that run parallel to the actions in state court, or to cases that raise
independent claims, even if those claims raise overlapping legal issues. Such cases would be
subject only to preclusion law. See Exxon, 544 U.S. at 292-93.
Plaintiff’s as-applied Constitutional challenges (Claims 1 and 2) are barred under RookerFeldman, as they by their nature seek to upset a prior state-court judgment applying that law
against him. See Feldman, 460 U.S. at 482-83 (district courts have subject-matter jurisdiction to
hear general attacks on the constitutionality of a state law that was applied against the Plaintiff,
but not as-applied challenges); Kenman Eng’g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002)
(a party may bring a general constitutional challenge to state law if the party does not request that
the federal court upset a prior state-court judgment applying that law against the party) (internal
Plaintiff’s Fourteenth Amendment § 1983 claims challenging his prosecution, both those
naming Defendants in their individual capacity and those against Defendant City of Tulsa or Tulsa
County (Claims 3, 4, 7 and 10), are also barred under Rooker-Feldman. A plaintiff may in certain
instances challenge in federal court the government’s decision to charge Plaintiff with a crime,
without also challenging his underlying conviction. For example, in Mo’s Express, LLC v. Sopkin,
the court had subject-matter jurisdiction over the plaintiff’s claim that the Colorado Public Utility
Commission exercised its jurisdiction in a manner that violated the Equal Protection Clause,
because the plaintiff only requested prospective relief. See 441 F.3d 1229, 1237-38 (10th Cir.
2006). By contrast, when a plaintiff challenges the decision to prosecute and seeks abrogation of
the state-court judgment as a remedy, a district court is barred from hearing that challenge under
Rooker-Feldman. See Market, 2017 U.S. App. LEXIS 25236, at *7-*8.6
In this case, it is impossible to construe Plaintiff’s claims as anything other than a request
for this Court to review and vacate the state-court judgment. Plaintiff seeks “an order Vacating
the District Court [sic] ‘Manslaughter by Dangerous Weapon Judgment’ [sic] in Tulsa County
A state prisoner may also bring a § 1983 claim challenging his conviction or sentence if
the conviction or sentence has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 487
(1994). As Plaintiff’s conviction has not been invalidated, the Heck doctrine is not at issue in
Case No: CF-2005-1.” (Doc. 6, at 24.) Additionally, Plaintiff has requested “compensatory and
punitive relief in excess of $156,000,000.” (Doc. 6, at 1.) This requested relief, in combination
with the request to vacate Plaintiff’s conviction, demonstrates that Plaintiff is asking the Court to
review and reject the state-court judgment and to award compensation for that judgment. Though
Plaintiff states that he does seek injunctive relief, he does not indicate what conduct he seeks to
enjoin. (Id. at 1.)7 Moreover, as Plaintiff’s prosecution is not ongoing, there is nothing to enjoin.
Because this relief would require appellate review of the state-court judgment, Claims 1-4, 7, and
10 are barred by Rooker-Feldman.
However, Plaintiff’s Fourth Amendment claims based on the seizure of his gun (Claims 5,
6, and 11) arise independently of the state-court judgment. These claims are identical to what they
would have been, even had there been no state-court judgment, and accordingly are not barred
under Rooker-Feldman. See Bolden v. City of Topeka, 441 F.3d 1129, 1145 (10th Cir. 2006)
(“Rooker-Feldman does not bar federal-court claims that would be identical even had there been
no state-court judgment; that is, claims that do not rest on any allegation concerning the state-court
proceedings or judgment.”). Similarly, the Court construes Plaintiff’s Second Amendment claim
(Claim 9) to allege that Plaintiff suffered a violation of his Second Amendment rights due to the
seizure of his firearm on January 10, 2004, after he shot Henderson. Accordingly, like the Fourth
Amendment claims that arise from that seizure of his firearm, this claim is identical to what it
Plaintiff did, after filing his Amended Complaint, filed a Motion for Preliminary
Injunction. (Doc. 52.) This Motion similarly does not seek to enjoin any conduct against
Plaintiff. Similarly, though Plaintiff has also attempted to cast his case as a class action, he has
not pled any other class representatives against whom any conduct can be enjoined.
Accordingly, this Motion does not rebut the conclusion that Plaintiff seeks the Court to review
and vacate the state-court judgment.
would have been if there had been no state-court proceeding, and is not barred under RookerFeldman. Id.
Finally, Plaintiff’s Eighth Amendment claim (Claim 8) is also not barred by RookerFeldman, because this claim challenges the post-judgment enforcement of the state-court
judgment, not the judgment itself. A party’s challenge to state-court procedures for enforcement
of a judgment is not barred by Rooker-Feldman, as long as it does not require the court to
reconsider the underlying state-court decision. See Kenman Eng’g v. City of Union, 314 F.3d at
476 (citing Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d at 1170-71 (2002)). Because the
Court could plausibly find Plaintiff’s imprisonment violated the Eighth Amendment without
vacating the state-court judgment, this claim is not barred by Rooker-Feldman.
Defendants’ Motions to Dismiss for Failure to State a Claim
Defendants Hunter, Allbaugh, Kunzweiler, Huff, Nance, Meulenberg, and the City of Tulsa
additionally argue that all of Plaintiff’s claims are time-barred. The Court will address this
argument with respect to Claims 5, 6, 8, 9, and 11, which are Plaintiff’s only remaining claims not
barred under Rooker-Feldman.
A. Rule 12(b)(6) Standard
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). By contrast, “[i]f the allegations . . . show that relief is barred by the
applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim.”
Jones v. Bock, 549 U.S. 199, 215 (2007). Generally, the sufficiency of a complaint must rest on
the contents of the complaint alone; however, the court may consider “matters of which the court
may take judicial notice.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). In this case,
this Court may take judicial notice of the state-court docket. See supra n.1.
Section 1983 does not provide any statute of limitations. Accordingly, courts must look to
state law for the appropriate period of limitations in § 1983 cases. See Wilson v. Garcia, 471 U.S.
261, 266-67 (1985). The Tenth Circuit has held that the appropriate period of limitations for §
1983 actions brought in the state of Oklahoma is two years. See Meade v. Grubbs, 841 F.2d 1512,
1522-24 (10th Cir. 1988); OKLA. STAT. ANN. tit. 12 sec. 95(3). While state law governs statutes
of limitations, federal law determines the accrual of § 1983 claims. See Alexander v. Oklahoma,
382 F.3d 1206, 1215 (10th Cir. 2004); Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir.
1993). A § 1983 claim accrues when “facts that would support a cause of action are or should be
apparent.” See Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995) (internal quotations omitted).
In this case, the latest date that any of Plaintiff’s claims could have accrued is November
15, 2004, the date of his formal sentencing. With the exception of Plaintiff’s Eighth Amendment
claim, all of Plaintiff’s claims concern events that took place before or during his trial. Moreover,
Plaintiff’s Eighth Amendment claim appears to challenge not any specific harm that he suffered
in prison, but the fact that he went to prison at all. Accordingly, at the time of his sentencing on
November 15, 2004, Plaintiff knew or should have known facts that would support all of his
claims. However, Plaintiff did not file this action until June 8, 2017, well outside the two-year
statute of limitations applicable to § 1983 cases brought in Oklahoma. Accordingly, all of
Plaintiff’s remaining § 1983 claims are time-barred as to all defendants.8
In his Response to Defendant Kunzweiler’s Motion to Dismiss (Doc. 79) and Response
to Defendant Huff’s, Nance’s, Meulenberg’s, and City of Tulsa’s Motion to Dismiss (Doc. 80),
Plaintiff raised the claim that his ongoing obligation to register as a violent offender under the
For the reasons set forth above, the Court finds that (1) Claims 1-4, 7, and 10 should be
dismissed pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction; and (2) Claims 5, 6, 8,
9, and 11 should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim as to all
Plaintiff’s Motion to Strike Document [Tulsa County Sheriff Vic Regalado’s Motion to
Dismiss] and Motion to Reset Response Deadline (Doc. 19) is DENIED.
Defendant Vic Regalado’s Motion to Dismiss for Failure to State a Claim (Doc. 15) is
Defendants Mike Hunter’s and Joe Allbaugh’s Motion to Dismiss for Lack of Jurisdiction
and Motion to Dismiss for Failure to State a Claim (Doc. 26) is GRANTED.
Defendants Mike Huff’s, Michael Nance’s, Richard Meulenberg IV’s, and the City of
Tulsa’s Motion to Dismiss for Failure to State a Claim (Doc. 76) is GRANTED.
Defendant Steven Kunzweiler’s Motion to Dismiss for Failure to State a Claim and Motion
to Dismiss for Lack of Jurisdiction (Doc. 78) is GRANTED.
Plaintiff’s Motion for Class Action Certification and Motion for Appointment of Class
Council [sic] (Doc. 5) is DENIED as MOOT.
Plaintiff’s Motion for 60(B)(4) Relief and Motion for Hearing (Doc. 18 and Doc. 20) is
DENIED as MOOT.
Mary Rippy Violent Crime Offenders Registration Act creates an “ongoing violation” and his
claim is therefore not barred by the statute of limitations. See OKLA. STAT. ANN. Tit. 57 sec.
591., et seq. Because this claim was not asserted in the Amended Complaint, the Court will not
consider it. See Lawmaster v. Ward, 125 F.3d 1341, 1346 n.2 (10th Cir. 1997).
Plaintiff’s Motion for Hearing on Plaintiff’s Response in Opposition to Defendants Mike
Hunter’s and Joe Allbaugh’s Motion to Dismiss (Doc. 31) is DENIED as MOOT.
Plaintiff’s Motion for Leave to File a Supplemental Brief in Support (Doc. 32) is DENIED
Plaintiff’s Motion for Declaratory Judgment (Doc. 34) is DENIED as MOOT.
Plaintiff’s Motion for Judgment as a Matter of Law (Doc. 43) is DENIED as MOOT.
Plaintiff’s Motion for the Court to Take Judicial Notice (Doc. 44) is DENIED as MOOT.
Plaintiff’s Motion for Summary Judgment (Doc. 49) is DENIED as MOOT.
Plaintiff’s Motion for Preliminary Injunction (Doc. 52) is DENIED as MOOT.
Plaintiff’s Motion for an Evidentiary Hearing (Doc. 68) is DENIED as MOOT.
IT IS THEREFORE ORDERED that Plaintiff’s case is DISMISSED. A separate
judgment of dismissal is entered herewith.
DATED THIS 8th day of March, 2018.
TERENCE C. KERN
United States District Judge
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