Wade v. Tulsa County District Court et al

Filing 25

OPINION AND ORDER by Chief Judge Gregory K Frizzell Dismissing Plaintiff's (Re: 20 Complaint ) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
RONALD GENE WADE, JR.,
Plaintiff,
v.
JASON A. ROBERTSON; JUDGE KIRSTEN
PACE; JUDGE WILLIAM MUSSEMAN;
TULSA COUNTY DISTRICT COURT;
CITY OF GLENPOOL; TULSA COUNTY
COURT CLERK; PIERCE, COUCH,
HENDRICKSON, BAYSINGER AND GREEN;
and OMAG,
Defendants.

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Case No. 18-CV-102-GKF-FHM

OPINION AND ORDER
This matter comes before the court sua sponte on Plaintiff’s Complaint [Doc. #20], filed
April 10, 2018.1 Plaintiff Ronald Gene Wade, Jr., appearing pro se, alleges that defendants have
deprived him of his Fifth Amendment, Fourteenth Amendment, and Article III rights in violation
of 42 U.S.C. § 1983, the federal civil rights statute, through their conduct in relation to Tulsa
County case no. CS-2017-3452 (“state court case”). Plaintiff also alleges violation of various
criminal statutes. Based on the alleged violations, plaintiff seeks actual damages, exemplary
damages, pre-judgment interest, post-judgment interest, and attorneys fees and costs. For the
reasons discussed below, plaintiff’s claims are dismissed with prejudice.

1

Styled as the “First Original Amended Complaint,” the pleading is plaintiff’s first complaint and
is referred to herein as simply the Complaint.

I.

Standard
A court may dismiss a complaint sua sponte “[i]f it is patently obvious that the plaintiff

could not prevail on the facts alleged, and allowing [the plaintiff] an opportunity to amend his
complaint would be futile.” King v. Oklahoma City, No. CIV-06-1308-M, 2007 WL 1519014, at
*2 (W.D. Okla. May 21, 2007) (alteration in original) (quoting McKinney v. Oklahoma, 925 F.2d
363, 365 (10th Cir. 1991)). “In determining whether a dismissal is proper, we must accept the
allegations of the complaint as true and construe those allegations, and any reasonable inferences
that might be drawn from them, in the light most favorable to the plaintiff.” Gaines v. Stenseng,
292 F.3d 1222, 1224 (10th Cir. 2002). A complaint must contain “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
“[a] pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers,” it is not the “proper function of the district court to
assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991).
II.

Analysis
The Complaint asserts claims against eight (8) defendants: (1) Jason A. Robertson; (2)

Judge Kirsten Pace; (3) Judge William Musseman; (4) Tulsa County District Court; (5) City of
Glenpool; (6) Tulsa County Court Clerk; (7) Pierce, Couch, Hendrickson, Baysinger and Green;
and (8) OMAG. The court will separately analyze the claims against these defendants.
A.

Jason A. Robertson, Pierce, Couch, Hendrickson, Baysinger and Green, and
OMAG

The Complaint asserts a § 1983 claim against Robertson based on his filings with the Tulsa
County Court Clerk and other conduct designed to “Obstruct the Plaintiffs Right to be Heard, Right

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to Due Process and Right to a Speedy Trial” in violation of plaintiff’s constitutional rights.2
Additionally, the Complaint alleges that Robertson violated six federal criminal statutes—18
U.S.C. §§ 241, 505, 1341, 1621, 1622, and 1623.
With regard to the § 1983 claim, “[t]o state a claim for relief in an action brought under §
1983, [plaintiff] must establish not only the deprivation of a right secured by the Constitution or
laws of the United States, but also a deprivation committed under color of state law.” Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014). “‘[T]he undercolor-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter
how discriminatory or wrongful.’” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
50 (1999)).
The allegations of the Complaint relate to Robertson’s conduct as an attorney in the state
court case. The Tenth Circuit follows “the ‘vast weight of authority’ [that] holds that ‘private
attorneys, by virtue of being officers of the court, do not act under color of state law within the
meaning of section 1983.’” Anderson v. Kitchen, 389 F. App’x 838, 841 (10th Cir. 2010) (quoting
Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983)). Thus, although Robertson is an officer
of the court, he is not a state actor for purposes of § 1983 liability.
Nor does the Complaint plausibly allege that Robertson acted “under color of state law” by
conspiring with Judge Musseman, Judge Pace, and the Tulsa County Court Clerk. In the Tenth
Circuit, “‘[w]hen a plaintiff in a § 1983 action attempts to assert the necessary ‘state action’ by

2

[Doc. #20, p. 11]. The Complaint repeatedly refers to “plaintiffs.” However, only one plaintiff
is identified in this action—Ronald Gene Wade, Jr. Presumably, in referencing multiple
“plaintiffs,” Mr. Wade is also referring to his ex-wife, Linda Wade, who he alleges “agrees to any
actions taken by Plaintiff Ron Wade.” [Doc. #20, p. 3]. However, Ms. Wade is not a party to this
case.
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implicating state officials or judges in a conspiracy with private defendants, mere conclusory
allegations with no supporting factual averments are insufficient; the pleadings must specifically
present facts tending to show agreement and concerted action.’” Scott v. Hern, 216 F.3d 897, 907
(10th Cir. 2000) (quoting Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983)).
Here, although plaintiff alleges “Judge Musseman conspired with the Defendant Attorney
to get rid of [him],” plaintiff does not offer specific factual allegations to support the conspiracy.
[Doc. #20, p. 9]. Naked assertions of Judge Musseman’s alleged conspiracy with Robertson,
devoid of factual enhancement, do not push plaintiff’s claims over the line from conceivable to
probable. See Twombly, 550 U.S. 557 and 570. Additionally, plaintiff asserts that Robertson
“conspir[ed] to involve the Tulsa County Court Clerk to Suborn Perjury and introduce a fake
document into the Docket.” [Doc. #20, p. 11]. However, plaintiff includes no facts from which
the court may infer that the Tulsa County Court Clerk agreed or otherwise acted in concert with
Robertson. Plaintiff does not identify the specific county employee involved or allege that the
court clerk knew that the disputed conduct would result in a violation of plaintiff’s rights. Nor
does the Complaint describe with any specificity any communication between Robertson and the
court clerk from which a meeting of the minds can be inferred. In fact, the Complaint asserts that
either Robertson or another attorney from Pierce Couch took the offending document to Tulsa
County. Thus, the Complaint fails to specifically present facts tending to show agreement and
concerted action with state officials, and therefore does not state a plausible § 1983 claim against
Robertson.
As for Robertson’s alleged violation of federal criminal law, none of the six cited statutes
provides a private cause of action. Garrett v. Lotus Inv. Funds Inc., 713 F. App’x 792, 793-94
(10th Cir. 2018) (18 U.S.C. § 241 does not establish a private cause of action); Citi Mortg., Inc. v.

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Hubbard, No. 13-144-JRT-JSM, 2014 WL 1303706, at *15 (D. Minn. Mar. 31, 2014) (no private
cause of action under section 505); Saro v. Brown, 11 F. App’x 387, 388 (6th Cir. 2001) (no private
cause of action under section 1341); Fuller v. Unknown Officials from the Justice Dep’t Crime
Div., 387 F. App’x 3, 4 (D.C. Cir. 2010) (“[T]here is no private cause of action for perjury, 18
U.S.C. § 1621; subordination of perjury, 18 U.S.C. § 1622; false declarations before a grand jury
or court, 18 U.S.C. § 1623 . . . .”). Thus, the court concludes that the claims against Robertson
should be dismissed.
For the same reasons, the court is persuaded that the claims against Robertson’s law firm—
Pierce, Couch, Hendrickson, Baysinger and Green—and OMAG should be dismissed. The
Complaint alleges only that Pierce Couch “allow[ed] one of their Partners to run amuck,” and that
OMAG “is the primary funding of Mr. Robertson” and “ignor[ed] notice after notice of his assault
on the Rights of the Plaintiffs.”3 [Doc. #20, p. 4]. The Complaint includes no allegations from
which the court may infer that either Pierce Couch or OMAG acted under color of state law.
Further, to the extent that plaintiff would argue that Pierce Couch “conspired” with the Tulsa
County Court Clerk, as previously discussed, the Complaint includes no factual allegations from
which the court may infer agreement or concert of action to deprive plaintiff of his constitutional
rights.
Based on this court’s review, it is “patently obvious” that plaintiff could not prevail on
claims against Robertson, Pierce Couch, or OMAG based on the facts alleged in the Complaint
and that amendment would be futile, particularly as these defendants are private actors. See Dunn
v. Harper County, No. CIV-12-587-HE, 2012 WL 3595109, at *5 (W.D. Okla. July 9, 2012),

3

“OMAG” is characterized as an “insurer” but no further identification is provided. However,
the court believes that “OMAG” refers to Oklahoma Municipal Assurance Group.
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report and recommendation adopted by, 2012 WL 3594886 (W.D. Okla. Aug. 21, 2012), aff’d,
520 F. App’x 723 (10th Cir. 2013). Thus, plaintiff’s claims against Robertson, Pierce Couch, and
OMAG are properly dismissed with prejudice.
B.

Judge Kirsten Pace and Judge William Musseman

The Complaint alleges that Tulsa County Special Judge Kirsten B. Pace “ignored Plaintiffs
Proper Notice of a Felony, other crime, or impropriety,” “ignored a prevailing argument,” “ignored
a request to investigate and uphold the law and divulge the contents of her personal file,” granted
a motion filed in the state court case “even though the Motion contained a perjured statement,”
and “ignored Proper Notice of a Conflict of Interest and refused to address the money trail,” in
violation of plaintiff’s constitutional rights. [Doc. #20, pp. 6-7]. Based on these allegations, the
Complaint asserts that Judge Pace obstructed plaintiff’s constitutional “right to be heard, right to
due process and right to a speedy trial” and conspired to deprive plaintiff of his constitutional rights
in violation of 18 U.S.C. § 241, the federal criminal conspiracy statute. [Doc. #20, pp. 4-5].
Further, the Complaint alleges that Judge Pace’s conduct violated the Oklahoma Rules of
Professional Conduct. [Doc. #20, p. 6].
The Complaint provides specific dates on which the alleged misconduct occurred. Based
on the court’s review of the docket in the state court case, it is clear that the dates correspond to
filings and/or rulings in the state court case.4

4

The court takes judicial notice of matters that are public record in Tulsa County case no. CS2017-3452. See St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)
(“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts,
both within and without the federal judicial system, if those proceedings have a direct relation to
matters at issue.”).
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“The Supreme Court of the United States has long held that judges are generally immune
from suits for money damages.” Stein v. Disciplinary Bd. of the Sup. Ct. of N.M., 520 F.3d 1183,
1195 (10th Cir. 2008). The principle of judicial immunity “is grounded in ‘a general principle of
the highest importance to the proper administration of justice[: i.e.,] that a judicial officer, in
exercising the authority vested in him, should be free to act upon his own convictions, without
apprehension of personal consequences to himself.’” Lundahl v. Zimmer, 296 F.3d 936, 939 (10th
Cir. 2002) (alterations in original) (quoting Stump v. Sparkman, 435 U.S. 349, 355 (1978)). “There
are only two exceptions to [judicial immunity]: (1) when the act is ‘not taken in [the judge’s]
judicial capacity,’ and (2) when the act, ‘though judicial in nature, [is] taken in the complete
absence of all jurisdiction.’” Stein, 520 F.3d at 1195 (quoting Mireles v. Waco, 502 U.S. 9, 12
(1991)). With regard to the second exception, a judge does not act in “complete absence of
jurisdiction,” “[e]ven if a judge acts in error, with malicious intent or in excess of authority,” or
the exercise of authority is flawed by “grave procedural errors.” Sain v. Snyder, No. CIV-08-1019JB-LFG, 2009 WL 1329520, at *3 (D.N.M. Apr. 6, 2009) (quoting Whitesel v. Sengenberger, 222
F.3d 861, 867 (10th Cir. 2000)); see also Calvert v. Safranek, 209 F. App’x 816, 820 (10th Cir.
2006) (state court judge had immunity from suit for judicial act, including alleged slanderous
statements made from bench).
Even construing the allegations of the Complaint most favorably to plaintiff, the conduct
alleged was taken in Judge Pace’s judicial capacity—specifically, the management and eventual
disposition of the state court case. Further, plaintiff does not allege that Judge Pace acted “in the
complete absence of all jurisdiction.” Nor would that allegation be plausible under Oklahoma law.
See 20 Okla. Stat. § 123(A) (“Special judges may hear and decide the following: . . . [a]ctions for
the recovery of money where the amount claimed does not exceed Ten Thousand Dollars

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($10,000.00) . . . .”). Thus, neither exception applies and Judge Pace is entitled to judicial
immunity.5 Accordingly, plaintiff does not state a plausible claim against Judge Pace.
For the same reasons, the Complaint does not state a plausible claim against District Court
Judge William Musseman. With regard to Judge Musseman, the Complaint also alleges that he
conspired to obstruct plaintiff’s constitutional rights. [Doc. #20, p. 4]. Specifically, plaintiff
alleges that Judge Musseman conducted an ex parte meeting with defendant Jason Robertson prior
to a hearing on plaintiff’s motion to recuse Judge Pace in the state court case and prematurely
denied plaintiff’s motion to recuse.
Judge Musseman’s alleged actions were clearly taken in his judicial capacity—ruling on
the motion to recuse. Further, the Complaint includes no allegations from which the court may
reasonably infer that Judge Musseman acted in the “complete absence of jurisdiction.” Rather, the
motion to recuse was within Judge Musseman’s jurisdiction by virtue of the transfer rules found
in Okla. Stat., tit. 12, ch. 2, app., § rule 15 and Tulsa County Local Rule 4(4). Thus, Judge
Musseman is entitled to judicial immunity and plaintiff does not state a plausible claim against
Judge Musseman.
Based on the foregoing, the court is persuaded that Judge Pace and Judge Mussessman are
entitled to immunity from liability and therefore any amendment of the claims against them would
be futile. Accordingly, the claims against Judge Pace and Judge Musseman are properly dismissed
with prejudice.

5

Further, neither violations of 18 U.S.C. § 241 nor the Oklahoma Rules of Professional Conduct
gives rise to a private cause of action. See Garrett, 713 F. App’x at 793-94 (18 U.S.C. § 241 does
not establish a private cause of action); Okla. Stat. tit. 5, ch. 1, App. 3-A, § Scope, ¶ 20; Powell v.
Miller, No. CIV-2010-01294-D, 2015 WL 1461367, at **6-7 (W.D. Okla. Mar. 30, 2015)
(Oklahoma rules of professional conduct do not give rise to private cause of action).
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C.

Tulsa County District Court

Plaintiff names as a defendant the “Tulsa County District Court.” Section 1983 liability
may only be imposed against “persons,” and “state courts are not separate ‘persons’ subject to
liability under § 1983.” Harper v. Woodward Cnty. Dist. Ct., No. CIV-10-849-HE, 2010 WL
6649767, at *2 (W.D. Okla. Oct. 12, 2010) (citing Coopersmith v. Sup. Ct., 465 F.2d 993, 994
(10th Cir. 1972)). Thus, plaintiff cannot state a plausible claim against the Tulsa County District
Court, and amendment would be futile. Plaintiff’s claims against the Tulsa County District Court
are properly dismissed with prejudice.
D.

City of Glenpool

Plaintiff alleges that the City of Glenpool “fund[ed] Mr. Robertson and ignor[ed] notice
after notice of his assault on the Rights of the Plaintiffs’.” [Doc. #20, p. 4]. To impose liability
on a municipality pursuant to § 1983, a plaintiff must show “(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. Cnty. Bd. Of Cnty. Comm’rs, 151
F.3d 1313, 1316 (10th Cir. 1998) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 694
(1978)). See also Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (“[A] plaintiff
asserting a § 1983 claim must show ‘1) the existence of a municipal policy or custom and 2) a
direct causal link between the policy or custom and the injury alleged.’ Through ‘its deliberate
conduct,’ the municipality must have been the ‘moving force’ behind the injury.”) (emphasis in
original) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).
Plaintiff does not allege that any of the individuals responsible for the alleged violations of
his constitutional rights—Robertson, Judge Pace, or Judge Musseman—were employees of the
City of Glenpool. Nor does plaintiff include any allegations from which the court may infer that

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the alleged violations were caused by a City of Glenpool municipal policy or custom. The
Complaint includes no allegations indicating the existence of a formal regulation or policy
statement, decisions of City of Glenpool employees with final policymaking authority, ratification
by such final policymakers of any decisions, or the failure to train or supervise. Compare Bryson
v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010). To the extent that plaintiff would rely
on his allegation that the City of Glenpool funded Mr. Robertson and ignored notice of the alleged
constitutional violations as an informal policy, plaintiff includes no factual averments in support
thereof. Conclusory allegations without the support of factual averments are insufficient, and
therefore the court is persuaded that the claims against the City of Glenpool should be dismissed.
Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“[T]he Federal Rules do not require courts to credit a
complaint’s conclusory statements without reference to its factual context.”). Further, it is
“patently obvious” that plaintiff could not prevail based on the facts alleged in the Complaint and
that amendment would be futile. See Dunn, 2012 WL 3595109, at *5. Accordingly, the court
concludes that plaintiff’s claims against the City of Glenpool should be dismissed with prejudice.
E.

Tulsa County Court Clerk

Finally, plaintiff asserts a claim against the Tulsa County Court Clerk.6 Plaintiff generally
alleges that the clerk “mishandl[ed] a crucial document” and “assist[ed] the Defendant Attorney
[to] commit a felony document tampering.” [Doc. #20, p. 4]. However, the specific facts alleged
relate only to the court clerk’s conduct in filing defendants’ response to plaintiffs’ motion for
summary judgment in the state court case, presented for filing by Robertson. See [id. at pp. 9-10].

6

Plaintiff does not identify the Tulsa County Court Clerk, Don Newberry. However, because the
court concludes that “Tulsa County Court Clerk” is entitled to immunity based on the allegations
of plaintiff’s Complaint, the court need not consider the effect, if any, of plaintiff’s omission.
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Plaintiff alleges that the response was filed six days late, but that the court clerk “read it into the
record retroactively without notations as to where it was for 6 days.” [Id. at p. 10].
In the Tenth Circuit, “[i]mmunity which derives from judicial immunity may extend to
persons other than a judge where performance of judicial acts is involved. Absolute judicial
immunity has been extended to non-judicial officers where their duties had an integral relationship
with the judicial process.” Lundahl, 296 F.3d at 939 (internal alterations omitted) (quoting
Whitesel, 222 F.3d at 867). This court is persuaded by the decisions of other courts holding court
clerks are entitled to absolute immunity for actions taken within the scope of their official acts,
including filing documents. See Smith v. Erickson, 884 F.2d 1108, 1111 (8th Cir. 1989) (“We
note, however, that the filing of complaints and other documents is an integral part of the judicial
process and that [district court clerk] would be protected by judicial immunity from damages for
civil rights violations committed in connection with the performance of such tasks.”); Sibley v.
U.S. Supreme Court, 786 F. Supp. 2d 338, 344 (D.D.C. 2011) (“[R]eceipt and processing of a
litigant’s filings are part and parcel of the process of adjudicating cases.”); Beauclair v. Green,
No. 14-3023-SAC, 2015 WL 225758, at *5 (D. Kan. Jan. 16, 2016); Howell v. Winchester, No.
CIV-07-1443-M, 2008 WL 700954, at *6 (W.D. Okla. Mar. 13, 2008). Nor would the court clerk
be deprived of immunity if the filing was wrongful, or even unlawful. Beauclair, 2015 WL
225758, at *5 (citing Dahl v. Charles F. Dahl, M.D., P.C., 744 F.3d 623 (10th Cir. 2014)).
Because plaintiff’s allegations against the Tulsa County Court Clerk relate only to the filing
of defendants’ motion for summary judgment in the state court case, and such conduct is an integral
part of the judicial process, the court concludes that the Tulsa County Court Clerk is entitled to
immunity. Because the Tulsa County Court Clerk is immune from liability, amendment would be

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futile. Thus, the claims against the Tulsa County Court Clerk are properly dismissed with
prejudice.
III.

Conclusion
WHEREFORE, Plaintiff’s “First Original Amended Complaint” [Doc. #20] is dismissed

with prejudice.
DATED this 16th day of April, 2018.

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