McKinney v. Oklahoma City City of et al

Filing 42

ORDER granting in part and denying in part 33 defendant Williams' motion to dismiss...plaintiff is granted leave to file his amended complaint as to the dismissed claims if he elects within 14 days of the date of this order...see order for specifics. Signed by Honorable Joe Heaton on 09/11/2013. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM RANDALL MCKINNEY,
Plaintiff,
vs.
CITY OF OKLAHOMA CITY, ET AL.,
Defendants.

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NO. CIV-13-0337-HE

ORDER
The court previously dismissed plaintiff's complaint, following removal of the case
to this court, because it did not meet federal pleading standards. Order, June 24, 2013 [Doc.
#26]. Plaintiff subsequently filed an amended complaint supplying some additional detail.
Defendants Williams has again moved to dismiss all claims in the amended complaint on the
same general grounds, plus assertion of governmental tort claims immunity and qualified
immunity as to some of them. Defendants Anglin, Camacho, and Gulikers (the "ACG"
defendants) have moved to dismiss some of the claims, but concede that others are
sufficiently pleaded.
The standards for evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6) were
stated in the court's prior order and will not be repeated here.
Plaintiff's first claim is a § 1983 claim. The complaint asserts constitutional violations
which "include, but are not limited to" violations of the 4th, 5th and 8th Amendments.
While it is not clear what other claims plaintiff may intend to assert, the court concludes he

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has stated facts sufficient to show plausible claims for false arrest and for excess force.1 To
establish a § 1983 claim, a plaintiff must establish (1) that the defendant deprived him of a
right secured by the Constitution or laws of the United States, and (2) that the defendant
acted under color of state law. Adickes v. Kress, 398 U.S. 144, 150 (1970). To show a
constitutional violation for false arrest, plaintiff must establish that he was arrested without
probable cause. Gouskos v. Griffith, 122 F. App’x 965, 970 (10th Cir. 2005). To establish
a claim for excessive force in effecting an arrest, plaintiff must show that the force used in
his arrest was objectively unreasonable in light of the facts and circumstances at the time.
Dixon v. Richer, 922 F.2d 1456, 1461-62 (10th Cir. 1991).
The ACG defendants concede that § 1983 claims for false arrest and excessive force
are stated and the court agrees. Contrary to defendant Williams suggestion, there are
sufficiently pled facts to show a plausible claim. The complaint alleges, among other things,
that defendant Williams knew plaintiff was on a suspended sentence, that he thought plaintiff
was among those responsible for Officer Peery's injuries, that he knew there was no
outstanding warrant for plaintiff's arrest, that he directed other officers to monitor locations
frequented by plaintiff despite a lack of evidence of any law violation, that he ordered other
officers to a particular establishment on March 18, 2011, and that the ACG defendants
arrested and beat plaintiff at Williams direction. While certain of these allegations, standing
alone, might be insufficient as conclusory, the court concludes sufficient facts are stated.

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As a matter of good pleading, these should have been stated as separate § 1983 claims.

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Contrary to the suggestion of the ACG defendants, the claims are not barred by the
statute of limitations. A two-year statute applies to § 1983 claims in Oklahoma. Young v.
Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). The complaint alleges the arrest in question
occurred on March 18, 2011. This case was filed on March 15, 2013.
To the extent defendant Williams asserts qualified immunity as to these counts, a basis
for the defense has not been established. As the ACG defendants appear to concede, the right
to be free from unreasonable seizures is clearly established and the acts of Williams, if true,
show the requisite constitutional violation. Fogarty v. Gallegos, 523 F.3d 1147, 1161-62
(10th Cir. 2008).
The second and third claims of the complaint purport to state claims for negligence
as to all defendants and negligent supervision as to Williams. Williams argues generally that
no basis for a negligence claim is stated and the court agrees. Negligence requires a
deviation from an established standard of care, as opposed to an act intended to bring about
a certain result. Here, the factual allegations are not consistent with a negligence claim, as
plaintiff appears to acknowledge. Plaintiff's response to Williams motion [Doc. #35 at 6]:
"These acts, taken as true, are considered intentional torts ...." The court concludes plaintiff
has not stated claims for negligence and that, to the extent he is pursuing claims for
intentional torts under state law, those should be clearly identified.
Plaintiff’s fourth claim is labeled one for abuse of process. The elements of an abuse
of process claim, under Oklahoma law, are (1) the improper use of the court process, (2)
primarily for an ulterior improper purpose, (3) resulting in damage to the plaintiff asserting
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the misuse. Greenberg v. Wolfberg, 890 P.2d 895, 905 (Okla. 1994). Contrasting the tort
of abuse of process with the tort of malicious prosecution, Greenberg describes malicious
prosecution as involving the initiation of the process, while the tort of abuse of process is
based on “a perversion of the process after it is issued.” Id. at 906.
With respect to the ACG defendants, plaintiff relies primarily on the allegedly
perjured testimony given by the officers at the revocation hearing as the necessary
“perversion of the process”. However, as those defendants note, Oklahoma regards
testimony given in a legal proceeding as absolutely privileged. Cooper v. Parker-Hughey,
M.D., 894 P.2d 1096 (Okla. 1995). Cooper broadly endorsed the concept of absolute
immunity from civil liability resulting from the testimony of witnesses in criminal
proceedings, Id. at 1098-9, and specifically found that “no civil cause of action for perjury
exists in Oklahoma.” Id. at 1101. Plaintiff’s response brief does not address the impact of
Cooper, and there is no apparent reason why it does not apply here. This immunity precludes
plaintiff’s effort to base an abuse of process claim on the allegedly perjured testimony.
Plaintiff’s response makes passing reference to the complaint’s allegations that the
ACG defendants arrested plaintiff without probable cause and that they knowingly provided
false information to prosecutors. However, as noted above, Greenberg requires that the basis
for an abuse of process claim be in perversion of the “process” after it is issued,2 not before.

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Oklahoma construes the term “process” broadly, to encompass “the entire range of
procedures incident to the litigation process.” Greenberg, 890 P.2d, at 905, n. 47. However, the
referenced actions preceded the formal initiation of legal proceedings.

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890 P.2d at 906. In some circumstances, allegations such as these might arguably be a basis
for a malicious prosecution claim, but, based on when they occurred relative to the
criminal/revocation proceeding, they are not a basis for an abuse of process claim here.
In sum, the complaint does not state an abuse of process claim against the ACG
defendants.
Insofar as the claim is asserted against defendant Williams, it also relies on allegations
that he intimidated witnesses in the course of the revocation hearing. Such conduct is alleged
to have occurred after the “process” was commenced, so it is not subject to the limitation last
discussed above. Although neither party has presented authority analyzing this tort in the
context of witness intimidation, the court concludes, with some hesitation, in light of
Oklahoma’s broad definition of “process” (see note 2 above), that witness intimidation is
potentially a sufficient “perversion” of the process to be actionable. However, any such
claim must be set forth in a manner consistent with Twombly. Here, the complaint’s
allegations of witness intimidation are wholly conclusory and insufficient under Twombly.
Plaintiff indicates the necessary information and specifics are in the hearing transcript. They
may well be, but the question for present purposes is the sufficiency of the complaint to state
a claim.3
The motions to dismiss will be granted as to the abuse of process claim.

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The court finds unpersuasive Williams’ reliance on “scope of employment” immunity. If
plaintiff ultimately establishes intimidation of witnesses by an officer for retaliatory or otherwise
improper purposes, a conclusion that the conduct was within his scope of employment seems
unlikely.

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Plaintiff's fifth claim is for intentional infliction of emotional distress. To make out
a claim for intentional infliction of emotional distress under Oklahoma law, a plaintiff must
establish (1) the defendant acted intentionally or recklessly, (2) the defendant’s conduct was
extreme and outrageous, (3) the defendant’s conduct caused the plaintiff emotional distress,
and (4) the resulting emotional distress was severe . Computer Publ’ns, Inc. v. Welton, 49
P.3d 732, 735 (Okla. 2002). The defendants argue the complaint does not allege
circumstances sufficiently severe to constitute the tort. The court concludes otherwise. The
complaint alleges law enforcement officers targeted the plaintiff for punishment despite his
having committed no offense, that they arrested him without cause, beat him severely in the
process, tasered him multiple times after he was handcuffed, and verbally assaulted him as
to what they hoped would happen to him in prison. If plaintiff is able to prove the truth of
those allegations, the necessary showing under Oklahoma law would be present.
Plaintiff's sixth claim purports to be for punitive damages. A request for punitive
damages is not a separate claim, but is simply a type of relief which may be available, in
appropriate circumstances, upon proof of some other claim. BMW of N. Am. v. Gore, 517
U.S. 559, 568 (1996). The motion will be granted as to the purported separate claim.
For the reasons stated, defendant Williams' motion to dismiss [Doc. #33] is
GRANTED in PART and DENIED in PART. It is GRANTED as to the purported
"negligence" claims, the abuse of process claim, and any purported separate claim for
punitive damages. The motion is otherwise DENIED. Plaintiff is GRANTED leave to file,
within fourteen (14) days, a further amended complaint as to the dismissed claims if he
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elects to do so. If a further amended complaint is filed, the constitutional claims under §
1983 should be separately stated as noted above.
IT IS SO ORDERED.
Dated this 11th day of September, 2013.

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