Parga et al v. Tulsa County et al

Filing 48

OPINION AND ORDER by Judge Claire V Eagan - Plaintiffs' motion to alter or amend judgment or for relief from judgment (Dkt. # 42) is granted, the Opinion and Order (Dkt. # 40) and the Judgment of Dismissal (Dkt. # 41) are va cated, and this case is reopened. The amended complaint (Dkt. # 32), the motion for class certification (Dkt. # 3), and the motion to dismiss (Dkt. # 24) are reinstated. Defendants' motion to dismiss (Dkt. # 24) is granted in part and denied in part as follows: Count One - The motion is granted as to defendants Tulsa County Special Judges Terry H. Bitting, Tammy Bruce, Owen Evens, James W. Keeley, J. Anthony Miller, Dawn Moody, Kirsten Pace, April Seibert, Sarah Smith, Martha Rupp Carter, Stephen R. Clark, Theresa Dreiling, Deborah Ludi Leitch, Millie Otey, and Clifford Smith for lack of Article III standing. The motion is denied as to defendant Tulsa County District Judge William Musseman. Count Two - The motio n is denied as to all defendants, subject to plaintiffs' limitation on the type of relief sought against defendant special judges only (i.e., declaratory relief only), as discussed herein. Count Three - The motion is granted as to all defendant s. ; reopening case; vacating/setting aside order(s); reinstating document(s); granting 42 Motion to Reconsider; granting 42 Motion to Alter Order/Judgment (Re: 40 Opinion and Order,,,, Ruling on Motion to Dismiss,, Ruling on Motion for Class Action Certification, 41 Judgment,, Dismissing/Terminating Case, 3 MOTION for Class Action Certification , 24 MOTION to Dismiss , 42 MOTION to Reconsider Order and Judgment Dismissing Case as Moot and Denying Class Certification Motion MOTION to Alter Order/Judgment , 32 Amended Complaint, ) (Documents Terminated: 41 Judgment,, Dismissing/Terminating Case, 40 Opinion and Order,,,, Ruling on Motion to Dismiss,, Ruling on Motion for Class Action Certification, ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

MICHAEL PARGA, RICHARD FELTZ,
TARA O’DONLEY, and CHRISTOPHER
WOOD, on behalf of themselves and all others
similarly situated,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
BOARD OF COUNTY COMMISSIONERS OF )
THE COUNTY OF TULSA; VIC REGALADO, )
Tulsa County Sheriff, in his official capacity;
)
TERRY H. BITTING, TAMMY BRUCE,
)
MARTHA RUPP CARTER, STEPHEN R.
)
CLARK, THERESA DREILING, OWEN
)
EVENS, JAMES W. KEELEY, DEBORAH
)
LUDI LEITCH, J. ANTHONY MILLER,
)
DAWN MOODY, MILLIE OTEY, KIRSTEN )
PACE, APRIL SEIBERT, CLIFFORD SMITH, )
and SARAH SMITH, in their capacities as
)
Tulsa County Special Judges; and WILLIAM )
MUSSEMAN, in his capacity as Tulsa County )
District Court Judge,
)
)
Defendants.
)

Case No. 18-CV-0298-CVE-JFJ

OPINION AND ORDER
Now before the Court is the motion to alter or amend judgment or for relief from judgment
(Dkt. # 42) filed by plaintiffs Michael Parga, Richard Feltz, Tara O’Donley, and Christopher Wood.
On June 6, 2018, plaintiffs filed a class action complaint (Dkt. # 2) alleging that defendants violate:
plaintiffs’ equal protection and due process rights by jailing them because they cannot afford a
monetary payment (count one); plaintiffs’ right to pretrial liberty by jailing them without procedural
due process (count two); and plaintiffs’ right to counsel by not providing them with counsel adequate

to challenge their wealth-based pretrial detention (count three). Id. at 30-31. That same day,
plaintiffs filed a motion for class certification (Dkt. # 3). Defendants Tulsa County District Judge
William Musseman and Tulsa County Special Judges Terry H. Bitting, Tammy Bruce, Owen Evens,
James W. Keeley, J. Anthony Miller, Dawn Moody, Kirsten Pace, April Seibert, Sarah Smith,
Martha Rupp Carter, Stephen R. Clark, Theresa Dreiling, Deborah Ludi Leitch, Millie Otey, and
Clifford Smith moved to dismiss the claims against them. Dkt. # 24; see Dkt. # 31.1 Plaintiff filed
a response (Dkt. # 25), and moving defendants filed a reply (Dkt. # 26). On October 22, 2018,
plaintiffs filed an amended complaint (Dkt. # 32). On November 19, 2018, this Court issued an
opinion and order (Dkt. # 40) and judgment (Dkt. # 41) dismissing without prejudice plaintiffs’
amended complaint as moot. Plaintiffs now move to alter or amend the judgment or for relief from
judgment. Dkt. # 42. Defendants Board of County Commissioners of the County of Tulsa and Tulsa
County Sheriff Vic Regalado filed a response in opposition to the motion (Dkt. # 43). Defendants
Musseman and Tulsa County Special Judges separately filed a response in opposition to the motion
(Dkt. # 44). Plaintiffs filed a reply in support of the motion (Dkt. # 47).
I.
A motion to alter or amend the judgment, sometimes referenced as a motion “to reconsider,”
filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, is warranted where there is “(1)
an intervening change in the controlling law, (2) new evidence previously unavailable, [or] (3) the
need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d
1

The motion to dismiss was originally filed by defendants Musseman, Bitting, Bruce, Evens,
Keeley, Miller, Moody, Pace, Seibert, and S. Smith only. Dkt. # 24. Defendants Carter,
Clark, Dreiling, Leitch, Otey, and C. Smith were subsequently added to the motion to dismiss
as additional moving parties. Dkt. # 31. Defendants Board of County Commissioners and
Regalado did not join in the motion to dismiss.
2

1005, 1012 (10th Cir. 2000). Thus, a party may ask a district court to reconsider a final ruling or
judgment when the district court has “misapprehended the facts, a party’s position, or the controlling
law.” Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009).
Relying on the third potential basis for moving to alter or amend the judgment, plaintiffs’ counsel
argues that reconsideration is necessary to correct clear error and prevent manifest injustice, because
the Court’s conclusion in its November 19, 2018 opinion and order is based on “a misapprehension
of Plaintiffs’ claims and a misconstruction of Supreme Court precedent.” Dkt. # 42, at 3.
In the November 19, 2018 opinion and order, this Court determined that it had an obligation
to address sua sponte2 whether plaintiffs’ amended complaint had been rendered moot as a result of
all four named plaintiffs paying their bonds and being released from jail prior to their initial
arraignments. Dkt. # 40, at 5. The Court began by reviewing plaintiffs’ allegations in the amended
complaint. The Court read the amended complaint as identifying two relevant time periods and two
corresponding putative subclasses. See id. at 2-4. First, plaintiffs allege that “[p]eople who are
arrested and are unable to pay preset cash deposits to secure their release must remain in jail cells
for six or more days before an arraignment, which is the first appearance in front of a judicial

2

As noted in the opinion and order, federal courts lack subject matter jurisdiction to hear
claims that are moot. Dkt. # 40, at 6. Moreover, Rule 12(h)(3) of the Federal Rules of Civil
Procedure provides that, “[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” FED. R. CIV. P. 12(h)(3). Plaintiffs’ counsel
asserts that defendants “did not argue that this case became moot when Named Plaintiffs
were released from jail.” Dkt. # 42, at 4. However, as the Tenth Circuit recently noted, the
Court “can raise issues of standing and mootness sua sponte because we ‘have an
independent obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.’” Collins et al. v. Daniels et al., Nos. 17-2217 & 182045, 2019 WL 908645, at 16-17 (10th Cir. Feb. 25, 2019) (quoting Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006)). Accordingly, mootness is not a mere “technical barrier” to
plaintiffs’ claims.
3

officer.” Dkt. # 32, at 2. Accordingly, the Court determined that the first time period, which
plaintiffs refer to as the “initial period of wealth-based detention,” id., begins with the individual’s
arrest and continues until his or her initial arraignment, which is at least six days after arrest. The
corresponding putative subclass, therefore, would include all arrested individuals who are forced to
remain in jail at least until their initial arraignments solely because they cannot afford their bond
amounts. Accordingly, the Court interpreted the amended complaint as excluding from this putative
subclass any individual who is released from jail prior to his or her initial arraignment, and,
therefore, is not forced to remain in jail for at least six days. Dkt. # 40, at 4 (“Plaintiffs allege that,
as a result of these practices, individuals who cannot afford to pay the financial conditions of release
must remain in jail for days, weeks, or months–but, in all instances, at least until his or her initial
arraignment, which takes place at least six days after arrest.” (emphasis added)).
The Court interpreted the second time period as beginning with the individual’s initial
arraignment. Plaintiffs allege that “[p]eople detained solely because of their inability to pay have
no opportunity at the first appearance to raise any legal or factual challenges to their wealth-based
pretrial detention.” Dkt. # 32, at 12. Plaintiffs assert that written bail-reduction motions, which
cannot be filed until after the initial arraignment, “are the only mechanism for challenging pretrial
detention.” Id. However, plaintiffs allege that the “judges hearing such motions refuse, as a matter
of routine practice, to make findings concerning ability to pay, alternative conditions or [sic] release,
or the necessity of pretrial detention. As a result, even if and when a financial condition of release
is reduced, often weeks after an arrest, it is frequently reduced to amounts that remain unaffordable.”
Id. at 22. Based on these allegations, the Court interpreted the amended complaint as alleging that
individuals who are detained solely because they cannot afford bond do not have an adequate
4

opportunity to challenge their bond amounts at any point during pretrial detention, including at their
bond-reduction hearings. Accordingly, the Court determined that the second time period continues
for the remainder of the individual’s pretrial detention (i.e., until trial or other case resolution that
results in his or her release). The corresponding putative subclass would consist of all individuals
who continue to be detained after their initial arraignments solely because they cannot afford to pay
their bond amounts, including individuals for whom no findings concerning ability to pay were made
at their initial arraignments or at their bond-reduction hearings.
The Court determined that because the named plaintiffs were released “before their initial
arraignments took place,” Dkt. # 40, at 6, their claims were moot and they were not members of
either putative subclass. Accordingly, because the named plaintiffs could not represent the putative
subclasses or demonstrate to the Court that the putative class claims are inherently transitory, the
Court dismissed the amended complaint as moot. Nonetheless, in footnote 9 of the opinion and
order, this Court acknowledged that the two putative subclasses do exist, and implicitly told
plaintiffs’ counsel to find those putative class members (i.e., those individuals who were detained
since their arrests until their initial arraignments, and have continued to be detained following their
initial arraignments and bond-reduction hearings, solely because they cannot afford to pay their bond
amounts), and to name those individuals as class representatives. Id. at 11 n.9.
Plaintiffs’ counsel now makes clear that this Court misread the amended complaint in two
ways. First, plaintiffs’ counsel clarifies that the first time period need not continue until the
individual’s initial arraignment. Rather, the corresponding putative subclass consists of all
individuals who are detained solely because they cannot afford their bond amounts, even if such
individuals are released prior to their initial arraignments or just hours after their arrests. Second,
5

plaintiffs’ counsel clarifies that plaintiffs “do not seek relief beyond the point in time at which class
members are given counsel and an opportunity to be heard on bail reduction motions,” and that
plaintiffs’ “claims would necessarily become moot for any class member within six to 10 days.”
Dkt. # 42, at 10-11. Because plaintiffs’ claims necessarily become moot upon their bond-reduction
hearings, it must be the case that putative class members are provided due process at their bondreduction hearings. The Court finds that it misread the amended complaint by interpreting it as
alleging that putative class members are denied due process at their bond-reduction hearings and
continue to have live claims throughout the entirety of their pretrial detentions. Rather, the second
time period begins with the individual’s initial arraignment, but it necessarily ends when the
individual has his or her bond-reduction hearing. The corresponding putative subclass consists of
all individuals who are detained during that time period solely because they cannot afford to pay their
bond amounts, including all individuals for whom no findings were made concerning ability to pay
at their initial arraignments. Because the Court misread plaintiffs’ amended complaint,3 the Court
finds that the motion to alter or amend judgment should be granted.4 Further, the Court finds that
the amended complaint (Dkt. # 32), the motion for class certification (Dkt. # 3), and the motion to

3

Because the Court finds that the motion should be granted on the basis of the Court
misreading the amended complaint, the Court need not address plaintiffs’ argument that the
Court misconstrued Supreme Court precedent.

4

The Court notes that plaintiffs have now had several chances to clearly delineate the nature
and extent of their claims–through the complaint, the amended complaint, the response to
the motion to dismiss, the motion to alter or amend judgment, and the reply in support of the
motion to alter or amend judgment. Therefore, to the extent plaintiffs disagree with the
Court’s revised interpretation of the time periods and putative subclasses as outlined in this
opinion, plaintiffs may file a motion for leave to file a second amended complaint that clearly
alleges the relevant time periods, the putative subclasses that correspond with each time
period, and the specific claims of each putative subclass.
6

dismiss (Dkt. # 24) should be reinstated.
II.
The Court now turns to moving defendants’ motion to dismiss (Dkt. # 24). Moving
defendants assert six bases for dismissal: (1) lack of Article III standing; (2) jurisdictional issues
based on federalism and comity; (3) failure to challenge bail requirements through a writ of habeas
corpus; (4) failure to state a claim for injunctive relief; (5) failure to state a claim that can be cured
through declaratory relief; and (6) judicial immunity.
A. Proposition I: Lack of Article III Standing
To have Article III standing, the plaintiff must have suffered or be imminently threatened
with a concrete and particularized “injury in fact” that is fairly traceable to the challenged action of
the defendant and likely to be redressed by a favorable judicial decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). “The party invoking federal jurisdiction bears the burden of
establishing these elements.” Id. at 561. It is well-settled that the district court must determine that
at least one named class representative has Article III standing to raise each class subclaim. See
Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1214 (10th Cir. 2014)
(citing Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279-80 (11th Cir. 2000)).
1. Injury-in-Fact As to Count Three
Moving defendants argue that named plaintiffs lack Article III standing as to count three, in
which plaintiffs allege that defendants violate their Sixth Amendment right to counsel. The amended
complaint contains numerous general allegations that defendants have a practice of violating putative
class members’ rights to counsel; such allegations, however, do not establish that any individual
named plaintiff was or will be denied counsel. “[E]ven named plaintiffs who represent a class ‘must
7

allege and show that they personally have been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong and which they purport to represent.’”
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976) (quoting Warth v. Seldin, 422
U.S. 490, 502 (1975)). Moreover, as the Court noted in its November 19, 2018 opinion and order,
only fourteen paragraphs in the amended complaint contain allegations relating to the four named
plaintiffs. Dkt. # 40, at 2. The right to or denial of counsel is not mentioned or referenced even once
in those fourteen paragraphs. There is not a single allegation in the amended complaint that any
individual named plaintiff was or will imminently be denied counsel. See Dkt. # 32, at 8-10.
Accordingly, the Court finds that count three of the amended complaint should be dismissed because
the amended complaint fails to allege facts sufficient to show that any of the named plaintiffs has
Article III standing to bring the claim alleged in that count.5
2. Injury Fairly Traceable to the Actions of Moving Defendants
In addition, moving defendants argue that plaintiffs fail to demonstrate that the alleged
injuries are fairly traceable to the challenged actions of defendant Musseman and defendant special
judges, because plaintiffs have not alleged that they have had any contact with any of those
defendants. The Court considers the “fairly traceable” element of standing with respect to counts
one and two only. Because the Court finds that plaintiffs fail to sufficiently allege an injury-in-fact
5

In addition, plaintiffs explicitly allege that the “right to counsel attaches once they have been
stripped of their liberty by virtue of the charges against them and appear before a judicial
officer to be informed of the charges lodged against them and have bail set or reviewed.”
Dkt. # 32, at 31. Plaintiffs allege that, at the time the complaint was filed, none of the named
plaintiffs had had his or her first appearance before a judicial officer. Id. at 9-10, ¶¶ 26, 30,
33, 36. Further, plaintiffs repeatedly refer to the arraignment as the first appearance in front
of a judicial officer. Id. at 2, 11, 12. Therefore, at the time the complaint was filed, the right
to counsel had not yet attached for any of the named plaintiffs, and, according to plaintiffs’
allegations, the right does not attach for any member of the first putative subclass.
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as to count three, the Court need not address whether the injury alleged in count three is fairly
traceable to the challenged actions of moving defendants.
Count one alleges that defendants violate plaintiffs’ equal protection and due process rights
by jailing them solely because of their inability to pay monetary payments. Count two alleges that
defendants violate plaintiffs’ rights to pretrial liberty by jailing them without providing them with
procedural due process at their hearings. Plaintiffs allege that, as of the filing of the complaint, they
were being detained pursuant to secured financial conditions of release, but they have not had their
first appearances before a judicial officer (i.e., their initial arraignments) as yet. However, plaintiffs
allege that their initial arraignments were scheduled to take place five days after the filing of the
complaint. Accordingly, as to count one, named plaintiffs allege that they are suffering an ongoing
actual injury. As to count two, named plaintiffs allege that they will imminently suffer an actual
injury. The Court first considers whether the actual injuries alleged in count one are fairly traceable
to the challenged actions of defendant Musseman, and then considers whether the future injuries
alleged in count two are fairly traceable to the challenged actions of defendant Musseman. The
Court will then conduct the same analysis with respect to defendant special judges.
i. Defendant Musseman
As to defendant Musseman, plaintiffs allege in the amended complaint that “Defendant
Musseman has general administrative, rulemaking, and supervisory authority over the District Court
for Tulsa County. Defendant Musseman promulgates the secured money-bail schedule that is used
to determine the financial condition of release for almost all people arrested in Tulsa County.
Defendant Musseman also promulgates the Local Criminal Rules, which specify the procedures by
which bail is set and probable cause determined, the timing and conduct of arraignments, and the
9

appointment of counsel.” Dkt. # 32, at 7-8. Each named plaintiff alleges that, upon arriving at the
Tulsa County Jail, a sheriff’s officer informed him or her of the bond amount. Further, each named
plaintiff alleges that he or she cannot afford the bond amount and, therefore, will remain in jail at
least until his or her first appearance before a judicial officer. Id. Because plaintiffs allege that they
are suffering actual injuries as a result of the secured money-bail schedule and/or the procedural rules
for setting bail, both of which are promulgated by defendant Musseman, the Court finds that
plaintiffs have sufficiently alleged actual injuries that are fairly traceable to defendant Musseman’s
actions with respect to count one. In addition, each named plaintiff alleges that he or she will suffer
a future injury upon having their initial arraignments. Further, because plaintiffs allege that
defendant Musseman has supervisory authority over the Tulsa County District Court and
promulgates the rules that specify the timing and conduct of arraignments, the Court finds that
plaintiffs have sufficiently alleged future injuries that are fairly traceable to defendant Musseman’s
actions with respect to count two.
ii. Defendant Special Judges
As to defendant special judges, plaintiffs allege that the special judges “are authorized by
state law to perform the duties of a magistrate in criminal cases . . . includ[ing] making probable
cause determinations and bail determinations. . . . Defendant Special Judges specify conditions of
release for the person whose arrest is authorized by each warrant[,] . . . determine conditions of
release for anyone who is arrested without a warrant on a charge that is not included in Tulsa
County’s secured bail schedule[,] . . . and review the monetary amounts that have been imposed
according to the secured bail schedule and have the authority and ability to adjust those money bail
amounts or impose alternative release conditions. Defendant Special Judges rarely, if ever, alter
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monetary amounts[, and], when making bail determinations, . . . do not conduct inquiries into or
make findings concerning people’s ability to pay money bail or the necessity of pretrial detention.”
Dkt. # 32, at 6-7.
In terms of count one, each named plaintiff alleges that he or she cannot afford the bond
amount and, therefore, will remain in jail at least until his or her first appearance before a judicial
officer. Id. at 7-8. Therefore, plaintiffs allege that they are suffering an ongoing actual injury. The
issue, however, is that the amended complaint lacks any allegation that would suggest that the actual
injury of any individual named plaintiff is fairly traceable to the actions of any defendant special
judges. First, named plaintiffs do not specify whether their bond amounts were determined
according to the secured-bond schedule or, instead, by a defendant special judge. Due to the fact that
a sheriff’s officer informed each named plaintiff of his or her bond amount upon arriving at the jail,
the most reasonable assumption is that the bond amounts were set pursuant to the bond schedule.
Second, although plaintiffs allege that defendant special judges have the ability to review and adjust
money bail amounts or other conditions of release at probable cause determinations, none of the
named plaintiffs alleges that his or her probable cause determination has taken place or will
imminently take place. Therefore, none of the individual named plaintiffs has alleged facts sufficient
to show that his or her actual injury, as alleged in count one, is fairly traceable to any actions by
defendant special judges. Accordingly, the Court finds that count one should be dismissed as to
defendant special judges only.
As to count two, as already noted, each named plaintiff alleges that he or she will suffer a
future injury upon having his or her initial arraignment. Plaintiffs allege that defendant special
judges “do not provide adequate hearings: they do not provide notice of the critical issues at the
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hearing, an opportunity to be heard or to confront evidence, findings by any legal or evidentiary
standard, or an explanation of reasons on the record.” Id. at 7. Further, plaintiffs allege that the
defendant special judge “presiding over arraignments refuses to hear arguments concerning
conditions of release at the arraignments.” Id. at 12. The Court finds that named plaintiffs have
alleged future injuries that are fairly traceable to the challenged actions of defendant special judges.
B. Proposition II: Federalism and Comity
Moving defendants argue that the Court should decline to exercise its jurisdiction over the
defendants due to concerns of federalism and comity. Defendants rely on the Anti-Injunction Act,
28 U.S.C. § 2283, and Younger v. Harris, 401 U.S. 37 (1971). First, defendants argue that the AntiInjunction Act prevents this Court from issuing any kind of injunction or order directing the state
court judges to stay any of the plaintiffs’ pending cases. The Anti-Injunction Act provides that a
federal court “may not grant an injunction to stay proceedings in a State court except as expressly
authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate
its judgments.” 28 U.S.C. § 2283. In Mitchum v. Foster, 407 U.S. 225 (1972), the Supreme Court
held that 42 U.S.C. § 1983 “is an Act of Congress that falls within the ‘expressly authorized’
exception of” the Anti-Injunction Act. Id. at 243. Accordingly, the Anti-Injunction Act does not
apply to § 1983 claims. Because plaintiffs bring their claims pursuant to § 1983, the Court finds that
the Anti-Injunction Act does not bar this Court from issuing an injunction or order directing the state
court judges to stay any of plaintiffs’ pending cases.
Moving defendants next argue that the Court should abstain from deciding plaintiffs’ claims
pursuant to the Younger doctrine. The Younger doctrine requires a federal court to abstain from
exercising jurisdiction over a case where “(1) state judicial proceedings are ongoing; (2) [that]
12

implicate an important state interest; and (3) the state proceedings offer an adequate opportunity to
litigate federal constitutional issues.” Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204
(10th Cir. 2003). Here, the third prong is not met. Plaintiffs challenge the alleged wealth-based
detention system and the legality of pretrial detention procedures and practices. Those issues cannot
be raised in defense of any plaintiff’s criminal prosecution. Gerstein v. Pugh, 420 U.S. 103, 108 n.9
(1975). Moreover, the injunction requested here is not directed at the state criminal proceedings.
Accordingly, the Court finds that the Younger doctrine is inapplicable in this case.
C. Proposition III: Failure to Challenge Bail Through Writ of Habeas Corpus
Next, defendants argue that the amended complaint should be dismissed because “[h]abeas
corpus is the exclusive remedy for prisoners challenging the fact or duration of their confinement.”
Dkt. # 24, at 22. In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court held that “when
a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief
he seeks is a determination to immediate release or a speedier release from that imprisonment, his
sole federal remedy is a writ of habeas corpus.” Id. at 500. Defendants argue that plaintiffs are
barred from seeking relief under § 1983 because the “core of the injunctive relief sought requires a
speedier release of Plaintiffs and potential class members through transformation of the bail and
counsel appointment process for indigent arrestees.” Dkt. # 24, at 22. In response, plaintiffs argue
that “they seek an injunction requiring constitutionally adequate practices to determine post-arrest
release or detention going forward. . . . Plaintiffs understand that success on their claims would not
guarantee that any particular arrestee would be released from custody.” Dkt. # 25, at 27.
The amended complaint seeks two forms of injunctive relief against defendant Musseman,

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defendant Board of County Commissioners, and defendant Regalado.6 First, plaintiffs seek to enjoin
defendants from “using secured financial conditions of release to detain Plaintiffs and class members
without ensuring an inquiry into and findings concerning alternatives,” necessity of detention, and
appointment of counsel. Dkt. # 32, at 32. This injunction would not necessitate the immediate or
speedier release from imprisonment of any named plaintiff or class member. Rather, the injunction
would simply require defendants to ensure that certain inquiries and findings are made when using
secured financial conditions of release. Defendants would still be able to detain arrested individuals
using alternative conditions of release, or using secured financial conditions of release so long as
they ensure that the requested inquiries and findings are made. Second, plaintiffs seek to enjoin
defendants from “depriving people who are arrested of speedy, individualized release hearings with
notice, counsel, the opportunity to be heard and to confront evidence, and findings on the record that
the government met its burden” of showing that no alternative conditions of release would be
sufficient. Id. at 33. Similarly, this injunction would not necessitate the immediate or speedier
release of any named plaintiff or class member. Rather, the injunction would require defendants to
provide the hearings, opportunities, and findings requested for all arrested individuals. Therefore,
the Court finds that plaintiffs do not seek an injunction ordering their immediate or speedier release.
Accordingly, the Court finds that plaintiffs are not barred from seeking the requested relief pursuant
to § 1983.
D. Proposition IV: Failure to State a Claim for Injunctive Relief
Next, moving defendants argue that plaintiffs cannot meet the requirements for the injunctive

6

As discussed in more detail below, plaintiffs do not seek injunctive relief against defendant
special judges.
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relief sought. “Where a plaintiff seeks equitable relief, a mere showing that he maintains a personal
stake in the outcome of the controversy is insufficient.” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th
Cir. 2011) (internal citations omitted). “Rather, a plaintiff must additionally demonstrate ‘an
adequate basis for equitable relief’–that is, ‘[a] likelihood of substantial and immediate irreparable
injury, and the inadequacy of remedies at law.’” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 499
(1974)) (alteration and emphasis in original). To state a claim for injunctive relief, a plaintiff must
demonstrate the likelihood that he is susceptible to a continuing injury that will have immediate
adverse effects. Id.
Plaintiffs allege that, as of the filing of the complaint, they were suffering ongoing actual
injuries (i.e., violations of their rights to equal protection and due process), because they were being
detained pursuant to secured financial conditions of release that they could not afford to pay. In
addition, plaintiffs allege that they faced imminent threats of future injuries (i.e., violations of their
rights to pretrial liberty), because their initial appearances were scheduled to take place five days
after filing the complaint. As discussed, the Court finds that such allegations are sufficient to show
that plaintiffs are susceptible to immediate and continuing injuries. Moreover, “[m]ost courts
consider the infringement of a constitutional right enough and require no further showing of
irreparable injury.” Free the Nipple-Fort Collins v. City of Forth Collins, Colo., 916 F.3d 792 (10th
Cir. 2019). Accordingly, the Court finds that plaintiffs have sufficiently alleged a likelihood of
substantial and immediate irreparable injury.
Defendants argue that there are other adequate remedies at law to compensate plaintiffs. This
argument relates back to the Younger doctrine. As the Court noted above, the Younger doctrine does
not bar plaintiffs’ claims for injunctive relief, because plaintiffs cannot raise the alleged issued in
15

defense of any of their criminal prosecutions. Therefore, the Court finds that there are no adequate
alternative remedies at law. The Court finds that plaintiffs have sufficiently alleged claims for
injunctive relief.
E. Proposition V: Failure to State a Claim for Declaratory Relief
Moving defendants argue that named plaintiffs fail to state a claim for declaratory relief,
because their claims are too speculative. A declaratory judgment is sustainable only if the court is
able to resolve an actual case or controversy rather than providing an advisory opinion. Jordan, 654
F.3d at 1025. Thus, a plaintiff seeking declaratory judgment must demonstrate that the Court’s
ruling will settle a dispute that affects the behavior of the particular defendant named in the
complaint toward the plaintiff. Id.
Plaintiffs seek three forms of declaratory relief. First, plaintiffs seek a declaration that all
defendants “violate Plaintiffs’ and class members’ constitutional rights by requiring secured financial
conditions of release without inquiry into ability to pay and by issuing and enforcing de facto orders
of wealth-based pretrial detention without consideration of alternatives and without findings that
such detention is necessary to serve a compelling interest.” Dkt. # 32, at 32. As discussed, the Court
finds that, as to count one, plaintiffs have sufficiently alleged an ongoing actual injury that is fairly
traceable to the actions of defendant Musseman. See supra Section II.A.2. Therefore, the Court
finds that this requested declaratory relief, if awarded, would affect the behavior of defendant
Musseman toward named plaintiffs. Accordingly, the Court finds that plaintiffs have sufficiently
alleged a claim for declaratory relief as to defendant Musseman. However, because the Court also
determines that plaintiffs have failed to show that their alleged ongoing actual injuries are fairly
traceable to the actions of defendant special judges, see supra Section II.A.2, the Court finds that
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plaintiffs have failed to state a claim for the declaratory relief requested in connection with count one
against defendant special judges. Accordingly, the Court finds that the claim for declaratory relief
requested in paragraph 143.a of the amended complaint should be dismissed as to defendant special
judges only.
Second, plaintiffs seek a declaration that all defendants “violate Plaintiffs’ and class
members’ right to procedural due process under the Fourteen Amendment by depriving people who
are arrested of speedy, individualized release hearings with notice, counsel, the opportunity to be
heard and to confront evidence, and findings on the record that the government met its burden to
demonstrate by clear and convincing evidence that no alternative condition or combination of
conditions would be sufficient to serve its compelling interests.” Dkt. # 32, at 32. As discussed,
plaintiffs sufficiently allege that, at the time the complaint was filed, they faced an imminent threat
of future injury that is fairly traceable to the actions of defendant Musseman and defendant special
judges. See supra Section II.A. Accordingly, the Court finds that the requested declaratory relief
would affect the behavior of defendant Musseman and defendant special judges toward named
plaintiffs. Therefore, the Court finds that plaintiffs have sufficiently alleged a claim for this
particular form of declaratory relief against defendant Musseman and defendant special judges.
Finally, plaintiffs seek a declaration that defendants violate plaintiffs’ and class members’
rights to counsel by failing to provide counsel to indigent people at an individualized bail
determination hearing. Dkt. # 32, at 33. Because this Court finds that named plaintiffs fail to allege
a violation of their rights to counsel, the Court finds that plaintiffs fail to state a claim for the
requested declaratory relief against all defendants.
F. Proposition VI: Judicial Immunity
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Finally, moving defendants argue that the Court should dismiss the claims against defendant
state judges, because defendant state judges are entitled to absolute judicial immunity from suit for
allegations involving judicial actions. In their response to the motion to dismiss, plaintiffs clarify
that they do not seek injunctive relief against defendant special judges. Dkt. # 35, at 29 n.5. Rather,
plaintiffs seek declaratory relief only against defendant special judges. Plaintiffs do, however, seek
both injunctive and declaratory relief against defendant Musseman, as well as defendant Regalado
and defendant Board of County Commissioners.
Section 309(c) of the Federal Courts Improvement Act of 1996 (“FCIA”), Pub. L. No. 104317, 10 Stat. 3847 (1996), bars injunctive relief in any § 1983 action “against a judicial officer for
an act or omission taken in such officer’s judicial capacity . . . unless a declaratory decree was
violated or declaratory relief was unavailable.” Judicial immunity applies to judicial acts, but not
to “acts that simply happen to have been done by judges.” Forrester v. White, 484 U.S. 219, 227
(1988). Here, plaintiffs seek injunctive relief against defendant Musseman, who is a judicial officer.
Plaintiffs argue, however, that they seek injunctive relief against defendant Musseman for his
administrative acts only, and not for his judicial acts.
“[A]n act may be administrative or ministerial for some purposes and still be a ‘judicial’ act
for purposes of immunity . . . .” Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985). “[F]actors
determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge, and to the expectations of the parties, i.e.,
whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362
(1978). Here, plaintiffs seek injunctive relief with respect to defendant Musseman’s administrative,
rulemaking, and supervisory authority over the Tulsa County District Court, his promulgation of the
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secured money-bail schedule, and his promulgation of certain Local Criminal Rules. Dkt. # 32, at
7-8. The Court finds that those acts are not considered functions normally performed by a judge.
Moreover, in performing these functions, defendant Musseman does not deal with any parties.
Therefore, there is no expectation that any person is dealing with defendant Musseman in his judicial
capacity when performing such acts. The Court finds that plaintiffs seek injunctive relief against
defendant Musseman for his administrative acts only. Therefore, judicial immunity does not bar
plaintiffs from seeking injunctive relief against defendant Musseman.
The Court turns to plaintiffs’ request for declaratory relief against defendant Musseman and
defendant special judges. “ Judicial immunity generally does not bar declaratory relief.” Deelan v.
Fairchild, No. 05-3458, 2006 WL 2507599, at *4 (10th Cir. Aug. 31, 2006)7 (citing Schepp v.
Fremont Cty., Wyo., 900 F.2d 1448, 1452 (10th Cir. 1990)). Accordingly, the Court finds that
judicial immunity does not bar plaintiffs from seeking declaratory relief against defendant Musseman
and defendant special judges.
IT IS THEREFORE ORDERED that plaintiffs’ motion to alter or amend judgment or for
relief from judgment (Dkt. # 42) is granted; the Opinion and Order (Dkt. # 40) and the Judgment
of Dismissal (Dkt. # 41) are vacated; and this case is reopened.
IT IS FURTHER ORDERED that the amended complaint (Dkt. # 32), the motion for class
certification (Dkt. # 3), and the motion to dismiss (Dkt. # 24) are reinstated.

7

This and other cited unpublished decisions are not precedential, but may be cited for their
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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IT IS FURTHER ORDERED that defendants’ motion to dismiss (Dkt. # 24) is granted
in part and denied in part as follows:
•

Count One - The motion is granted as to defendants Tulsa County Special Judges
Terry H. Bitting, Tammy Bruce, Owen Evens, James W. Keeley, J. Anthony Miller,
Dawn Moody, Kirsten Pace, April Seibert, Sarah Smith, Martha Rupp Carter,
Stephen R. Clark, Theresa Dreiling, Deborah Ludi Leitch, Millie Otey, and Clifford
Smith for lack of Article III standing. The motion is denied as to defendant Tulsa
County District Judge William Musseman.

•

Count Two - The motion is denied as to all defendants, subject to plaintiffs’
limitation on the type of relief sought against defendant special judges only (i.e.,
declaratory relief only), as discussed herein.

•

Count Three - The motion is granted as to all defendants.

DATED this 15th day of March, 2019.

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