Teague v. Oberg et al

Filing 14

OPINION AND ORDER by Judge James H Payne ; denying 8 Motion to Dismiss (pll, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
TASHA TEAGUE,

)
)
Plaintiff,
)
)
vs.
)
)
(1) KEISHA OBERG, Individually, )
(2) BOARD OF COUNTY
)
COMMISSIONERS OF MAYES )
COUNTY, a political subdivision )
and municipal corporation,
)
)
Defendants.
)

Case No. 17-CV-642-JHP-JFJ

OPINION AND ORDER
Before the Court is Defendant Board of County Commissioners of Mayes
County’s (“Board”) Partial Motion to Dismiss (Dkt. 8). Plaintiff Tasha Teague
(“Plaintiff”) has filed a Response and Objection in Opposition (Dkt. 10), and the
Board has filed a Reply (Dkt. 12). After consideration of the briefs, and for the
reasons stated below, the Partial Motion to Dismiss is DENIED.
BACKGROUND
Plaintiff filed this action to recover against the Board and Mayes County
Deputy Keisha Oberg (“Oberg”) for alleged violations of the Fourth Amendment
to the United States Constitution. Plaintiff also brings state law claims, including a
claim pursuant to Bosh v. Cherokee County Governmental Building Authority, 305

P.3d 994 (Okla. 2013). According to the Petition, on February 21, 2017, Plaintiff
was sitting in her car with a passenger near the Mayes County Courthouse, waiting
for a friend to be released from jail. (Dkt. 2-2, ¶¶ 5-6). At approximately between
12:00 p.m. and 1:00 p.m., Oberg, in plain clothes, walked up to Plaintiff’s car,
confirmed Plaintiff’s identity, and told Plaintiff she was going to take her phone
due to an “ongoing investigation.” (Id. ¶¶ 2, 6-7). Plaintiff asked if Oberg needed
a warrant, and Oberg threatened to arrest Plaintiff while she obtained a warrant if
Plaintiff refused to hand over the phone. (Id. ¶ 7). Plaintiff stepped out of the car
with her phone in her hand, and Oberg then snatched the phone from Plaintiff’s
hand. (Id. ¶ 8). Plaintiff then asked Oberg if she was going to jail, to which Oberg
responded, “Do you want to go to jail?” (Id.). Plaintiff replied that she did not,
and Oberg advised Plaintiff to get back in her car and leave. (Id.). Oberg then
walked away without further explanation or paperwork to document the exchange.
(Id. ¶ 9).
Plaintiff now alleges a total of ten causes of action against the Board and
Oberg. (See id. ¶¶ 28-72). Relevant to the motion at issue, Plaintiff seeks to
recover against the Board pursuant to Bosh v. Cherokee County Governmental
Building Authority, 305 P.3d 994 (Okla. 2013), for violating Plaintiff’s rights under
Article II § 30 of the Oklahoma Constitution (the “Bosh claim”). (Id. ¶¶ 43-44).

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The Board has now moved to dismiss Plaintiff’s Bosh claim against it
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which any relief can be granted as a matter of law. (Dkt. 8). Plaintiff filed a
Response and Objection in opposition (Dkt. 10), and the Board filed a Reply (Dkt.
12). The motion is fully briefed and ripe for review.
DISCUSSION
In considering a Rule 12(b)(6) motion, the court must accept all wellpleaded 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 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.
The Board contends Plaintiff’s Bosh claim is subject to dismissal, because
Bosh does not support a private right of action for the alleged violation of
Plaintiff’s rights under Article II § 30 of the Oklahoma Constitution. The Board
argues Bosh should be limited to its holding and should not be extended to
Plaintiff’s claim for unlawful seizure of her personal property.
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In Bosh, the court recognized a private right of action for excessive force
against a pre-trial detainee based on Article II § 30 of the Oklahoma Constitution,
notwithstanding the limitations of the Oklahoma Governmental Tort Claims Act
(“OGTCA”), 51 Okl. St. §§ 151 et seq.

The Oklahoma Supreme Court later

limited Bosh claims to those that may be brought against a municipality only when
a cause of action under the OGTCA is not available. Perry v. City of Norman, 341
P.3d 689, 689 (Okla. 2014).
More recently, in Deal v. Brooks, 389 P.3d 375, 384 (Okla. Civ. App. 2016),
the Oklahoma Court of Civil Appeals held that Article II § 7 of the Oklahoma
Constitution provided a Bosh-type private cause of action for a child whose due
process rights had been violated by reckless and deliberate acts of the Department
of Human Services. The Court of Civil Appeals in Deal wrote:
As in Bosh, where the Oklahoma Supreme Court declined to construe
the GTCA so as to immunize the state from constitutionally-based
liability for excessive force inflicted on a prisoner while in its
custody, we conclude the GTCA does not immunize [the Department
of Human Services] from liability for certain reckless and deliberate
acts that deprive a child of due process rights while in state custody.
To decide otherwise would render as ineffective, and a nullity, a
child's fundamental “interest in safe conditions, personal security, and
bodily integrity for persons in state custody” guaranteed under the due
process clause of both the United States Constitution and the
Oklahoma Constitution.
Id. (emphasis in original). The Oklahoma Supreme Court later approved Deal for
publication, thereby according precedential value to the opinion. Deal v. Brooks,
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2016 OK 123 (Okla. 2016). See also GJA v. Oklahoma Dep’t of Human Servs.,
347 P.3d 310, 316 (Okla. Civ. App. 2015) (affirming dismissal of Bosh claim
based on gross negligence, but noting, “[t]he Bosh case is not limited to its facts
and specific holding. It does stand for the proposition that the Supreme Court
recognizes a broader scope of actionable claims based upon violations of
constitutional rights.”).
The Board attempts to diminish the significance of Deal and GJA, arguing
that the Deal decision relied upon dicta from GJA in support of its broad reading of
Bosh. The Board urges the Court to rely instead on federal district court decisions
that limit the holding of Bosh to the particular circumstances of that case. See
Hedger v. Kramer, 2013 WL 5873348, at *3 (W.D. Okla. Oct. 30, 2013) (declining
to extend Bosh rule to DHS for alleged “seizure” by placing child in foster care);
Koch v. Juber, 2014 WL 2171753, at *3 (W.D. Okla. May 23, 2014) (declining to
extend Bosh rule to cover due process claims, noting that “Bosh does not serve to
create a private right of action for all claims arguably arising under the Oklahoma
Constitution.”); Langkamp v. Mayes Emergency Servs. Trust Auth., 2017 WL
2819003, at *6 (N.D. Okla. June 29, 2017) (declining to extend Bosh rule to cover
claims under Art. II, §§ 2, 3, 7, and 22 of the Oklahoma Constitution, noting that
the “Oklahoma Supreme Court has given no indication that Bosh has been
extended beyond excessive force claims.”).
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Plaintiff acknowledges the mixed interpretations of Bosh among courts in
Oklahoma, but she urges the Court to interpret Bosh broadly to cover claims
beyond those of excessive force against pre-trial detainees.

This Court has

previously concluded that Bosh extends beyond excessive force claims, covering
unlawful seizure claims under Article II § 30 of the Oklahoma Constitution.
Halley v. Oklahoma ex rel. Okla. Dep’t of Human Servs., 176 F. Supp. 3d 1268
(E.D. Okla. 2016). See White v. City of Tulsa, 979 F. Supp. 2d 1246, 1249 (N.D.
Okla. 2013) (allowing Bosh claim for unreasonable search and seizure in violation
of Okla. Const. Art. II § 30 to proceed, holding, “The Court interprets Bosh to
recognize a private cause of action for violations of the rights protected by Article
2, § 30, rather than merely recognizing a private right of action for excessive
force.”). See also Miller v. City of Konawa, 2017 WL 6328943, at *3-4 (E.D.
Okla. Dec. 11, 2017) (allowing Bosh claim for violations of Okla. Const. Art. II §§
2, 7, 22, and 36A to proceed at motion to dismiss stage, noting that Deal
recognized Bosh stood for allowing causes of action beyond its original context).
In light of Deal and the above persuasive authority favoring a more expansive
approach to Bosh claims, the Court concludes for purposes of its Rule 12(b)(6)
analysis that Plaintiff may maintain her Bosh claim pursuant to Article II § 30 of
the Oklahoma Constitution.

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Finally, the Board contends Plaintiff’s Bosh claim is foreclosed, because
Plaintiff has available remedies under the OGTCA and has pursued OGTCA
claims for conversion, false arrest, and negligence against the Board. As the Board
correctly points out, the Oklahoma Supreme Court has explained that Bosh claims
are unavailable when the plaintiff could have brought the claim under the OGTCA
and potentially recovered for that claim. Perry, 341 P.3d at 692-93. Plaintiff’s
Petition clarifies that she raises the Bosh claim only “to the extent that the OGTCA
or other Oklahoma law prohibits Plaintiff’s claims.” (Dkt. 2-2, ¶ 44). The Court
finds the record is insufficiently developed at this point to conclude whether the
OGTCA would preclude Plaintiff’s claims. Accordingly, the Court finds Plaintiff
may maintain her Bosh claim at this stage of the case.
CONCLUSION
For the reasons detailed above, Defendant Board’s Partial Motion to Dismiss
(Dkt. 8) is DENIED.

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