Goad v. Meeker City of et al
Filing
86
ORDER granting 55 defendants' motion for summary judgment against plaintiff as to all claims...see order for specifics. Signed by Honorable Joe Heaton on 04/24/2015. (lam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JAMES GOAD,
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)
)
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)
)
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Plaintiff,
vs.
TOWN OF MEEKER, et al.,
Defendants.
NO. CIV-14-0282-HE
ORDER
Plaintiff James Goad filed this action against the Town of Meeker (“Town”) and
Samuel D. Byrd, Meeker’s Chief of Police, asserting claims under § 1983 and state law.
Defendants have filed a motion for summary judgment, which is appropriate only “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine dispute as to a
material fact ‘exists when the evidence, construed in the light most favorable to the
non-moving party, is such that a reasonable jury could return a verdict for the non-moving
party.’” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th Cir. 2011)
(quoting Zwygart v. Bd. of Cnty. Comm'rs, 483 F.3d 1086, 1090 (10th Cir.2007)). Having
considered the submissions of the parties in light of this standard, the court concludes
defendants’ motion should be granted.
Background1
1
While plaintiff challenges many of defendants’ factual statements on the basis they are
immaterial or defendants have combined multiple facts into one numbered statement, most
of the facts are undisputed.
Defendant Sam Byrd currently is the Chief of Police for the Town of Meeker. He
was promoted to Assistant Police Chief in November 2009 and Chief of Police in January
2013. Plaintiff lived in Meeker for ten years, from approximately 2004 until 2014.
On October 6, 2010, plaintiff’s brother, Gerald Goad, was stopped by Officer Darren
Harris of the Meeker Police Department for a traffic violation. Gerald Goad called plaintiff
and told him that his car was going to be impounded. Plaintiff drove to the site of the traffic
stop and Officer Harris, who felt plaintiff was interfering with the traffic stop, threatened
multiple times to arrest plaintiff for obstruction if plaintiff did not return to his vehicle.
Plaintiff was handcuffed at one point, but was released after a few minutes. Plaintiff filed
a citizen’s complaint against Office Harris with the Meeker Police Department as a result of
the incident on October 7, 2010. The complaint, which was investigated by Jim Howard, the
acting city manager, was resolved.
Plaintiff got into a dispute with another Meeker police officer, Officer Sean Sugrue,
over a year later. On June 4, 2012, Officer Sugrue was seated in his patrol car in front of
Meeker Supply and Pawn providing traffic control (“running traffic, stationary radar”) near
a construction zone on South Dawson, also known as Highway 18, in Meeker. Doc. #56-11,
p. 10.2 Officer Sugrue’s patrol car was blocking the entrance to the pawn shop when plaintiff
drove up. Plaintiff informed the officer he owned the pawn shop and, when he asked or told
2
Page references for briefs and exhibits are to the CM/ECF document and page number. For
example, paragraph 3 of the declaration of defendant Bryd, attached to defendants’ brief, is referred
to as Doc. #56-1, p. 1, ¶3.
2
Officer Sugrue to move it, the officer told plaintiff he was parked on an easement. Although
the pawn shop was closed at the time, plaintiff told the officer he had a delivery coming.
There was a brief argument during which Officer Sugrue said he would move his vehicle
when he was ready to and plaintiff allegedly stated that he would take the matter up with the
city manager. The officer did not leave his vehicle during the encounter. Plaintiff went into
the pawnshop and the officer at some point drove away.
Later that day plaintiff went to the Meeker city hall for a previously scheduled
meeting with the mayor and city manager to discuss town issues. He also intended to
complain about his confrontation with Officer Sugrue. Officer Sugrue arrived at city hall at
the same time as plaintiff. He had seen plaintiff heading there and thought he needed to be
there to “face [his] accusers.” Doc. #56-11, p. 94. Plaintiff and Office Sugrue got into
another argument in the parking lot about whether plaintiff had worn a seatbelt while driving
there. Plaintiff testified that when Officer Sugrue realized his ‘67 Camaro did not have a
shoulder belt, he accused him of rolling through a stop sign. Plaintiff walked away from the
argument and entered the building where he met the mayor and city manager. Plaintiff
claims Officer Sugrue, who was coming in behind plaintiff, stated in a loud voice “He’s got
an attitude and I don’t do attitude,” at which point the city manager put his hand on plaintiff’s
shoulder and asked him to accompany him to his office. Doc. #56-8, p. 43. At some point
(it is disputed whether it was before or after the incident with Office Sugrue) a sign was put
up in front of Meeker Supply and Pawn that stated: “SLOW DOWN MEEKER SPEED
3
TRAP AHEAD.”3 Plaintiff indicates he did not personally install the sign, but thought
employees of Meeker Supply and Pawn probably put it up.4
On June 6, 2012, plaintiff filed a citizen’s complaint against Officer Sugrue with the
Meeker Police Department. Defendant Byrd, who at that time was the acting Assistant Chief
of Police, investigated the complaint. He requested a written statement from Officer Sugrue
and gave him a written warning for the incident.5 Defendant Byrd also sent plaintiff a letter
regarding the results of his investigation. Before the June 4, 2012, incident with plaintiff,
Officer Sugrue had never been given a warning or written up for misconduct by the Town
of Meeker. He had not been the subject of a citizen’s complaint. Officer Sugrue did not
receive any further warnings or write ups or citizens’ complaints until he was terminated by
Chief of Police Byrd on February 11, 2014, for assaulting an arrestee.
While the Town of Meeker Police Department Training Manual/Standard Operating
3
Defendants claim plaintiff has created a sham issue in that he testified during his deposition
that he could not recall when the sign was put up, but believed it went up after March, Doc. #56-8,
pp. 18-19, and then stated in an affidavit submitted with his response brief that “[w]hile I do not
remember the exact date the speed trap sign was posted in front of Meeker Supply and Pawn, I am
sure that it was before Office Sugrue parked his patrol car in front of the driveway to the property
and refused to move. Doc. #63-4. The court does not find the two statements sufficiently
contradictory to warrant disregarding plaintiff’s affidavit.
4
Defendants did not challenge plaintiff’s retaliation claim on the ground that he denied
responsibility for placing the sign in front of the pawn shop. In other words, they did not address
the issue of whether, if plaintiff did not put up the sign or apparently direct that it be put up, could
it be considered his expression. Plaintiff did claim that defendants believed he was responsible for
the sign.
5
Byrd’s memo to Sugrue “exonerated” him from any claimed violation of Department
policies, but nonetheless warned him – what it termed a “verbal warning” – about his handling of
contentious situations. Doc. #56-5.
4
Procedures6 authorizes the investigations of citizens’ complaints, plaintiff asserts the
procedures were not followed with respect to the two complaints he filed. The manual
provides that “[c]omplaints involving how law-enforcement service is provided . . . will be
investigated and handled by the Chief of Police,”7 Doc. #56-7, p. 41, ¶6.7.3, but his
complaints, plaintiff asserts, were investigated by the town administrator and the assistant
chief of police.
Plaintiff’s next contact with the Meeker Police Department occurred on February 16,
2013, when he was stopped for speeding by Officer Sugrue in Meeker. The officer told
plaintiff he was going 45 mph in a 35 mph zone. It was dark at the time of the stop and
plaintiff was driving a different vehicle than the one he drove when he had encountered
Officer Sugrue in June 2012. Officer Sugrue did not know the identity of the person he was
pulling over when he initiated the traffic stop. The stop did not last an unusual amount of
time, the officer was not belligerent with plaintiff and did not attempt to intimidate him.
Plaintiff did ask to see the radar and it showed that he was going 45 mph. Plaintiff claims
he was not speeding because he “know[s] not to speed in Meeker, ” Doc. #56-8, p. 61,
though he testified he had his cruise set that morning and it was set to “[f]orty-five.” Id. at
62. Plaintiff also asserted that he was not speeding because Officer Sugrue was sitting under
the 35 mph speed limit sign, which was the sign that lowered the speed limit on that stretch
6
The Town of Meeker Board of Trustees voted on and approved the Standard Operating
Procedures.
7
They may be investigated by an outside agency if requested by the police chief.
5
of road, and he was allowed to drive 45 mph until he got to the officer’s patrol car and the
35 mph sign. Plaintiff did not file a citizen’s complaint against Officer Sugrue in connection
with the February 16th traffic stop and had no further contact with him.
Plaintiff hired an attorney to represent him in conjunction with the traffic ticket. On
March 6, 2013, his attorney filed a motion requesting the production of the personnel records
of Office Sugrue.
The fine for speeding one to ten mph over the speed limit in Meek is $119. Plaintiff
eventually paid $119 in administrative fees in lieu of a fine on August 6, 2013, and the case
was dismissed. Administrative fees are often assessed as a type of negotiated settlement for
traffic offenses in Meeker municipal court. The Town, under the agreement, dismisses the
offense so that it does not appear on the offender’s driving record, and the offender pays the
entire fine which is assessed as an administrative fee. The dismissal of the offense is not a
determination of guilt or innocence.
On March 7, 2013, the day after plaintiff filed his motion seeking Sugrue’s personnel
file, defendant Byrd submitted a charge packet to the Lincoln County District Attorney’s
office, which included an application for warrant of arrest. The application listed three
possible charges: operating a pawnshop after felony conviction, 59 Okla. Stat. §1503A(B);
operating a pawnshop without a license, 59 Okla. Stat. §1512(C); and making a false
declaration to law enforcement, 21 Okla. Stat. § 453.8 Doc. #56-22, p. 38. The Lincoln
8
While defendant Byrd described the offense as making a false declaration to law
enforcement, the title of the statute is “Preparing false evidence.”
6
County District Attorney’s Office decided to charge plaintiff with one felony count under the
latter statute. The other charges were determined to be administrative in nature and were
submitted to the Attorney General’s Office for review. A Lincoln County district court
judge then found that probable cause existed to issue a warrant for plaintiff’s arrest on the
preparing false evidence charge under 21 Okla. Stat. § 453.9
Although defendant Byrd did not submit the charge packet until March 2013, he
contends he began investigating plaintiff in June 2012. He asserts he became suspicious of
plaintiff when he let slip, at the time he submitted his citizen’s complaint against Officer
Sugrue, that he had been in prison. Defendant Byrd states he reviewed plaintiff’s citizen’s
complaint and noticed that plaintiff claimed to be the owner of Meeker Supply and Pawn.
Defendant Byrd stated that because he was aware of state laws prohibiting convicted felons
from owning or operating a pawnshop he ran a background check on plaintiff.10 When he
9
The information in the application for warrant submitted by Byrd was not sufficient to
support an inference that Goad’s statement about owning the pawnshop was false. It only supported
an inference that Goad’s ownership would have violated other laws (i.e. a former felon operating
the shop, or that he lacked a license), not that he did not in fact own it. The application makes no
reference to what the Department of Consumer Credit’s records showed or to any other indicator
of the actual ownership of the pawn shop. However, for present purposes, where Byrd’s potential
liability is the issue, the question is not whether Byrd’s written application was sufficient to support
a finding of probable cause, but is rather whether Byrd had probable cause for the charge at all.
As noted elsewhere, it is undisputed that Byrd contacted the Department of Consumer Credit and
had the information about ownership which a department employee had relayed.
10
Plaintiff challenges defendant Byrd’s statement in his declaration that he was aware in the
summer of 2012 that felons could not own or operate a pawn shop, citing Byrd’s deposition
testimony that it was a federal agent who later told him that plaintiff might be operating the pawn
shop without a license or after a felony conviction. The court does not find the two statements to
be inconsistent. Defendant Byrd testified that, as of July 5, 2012, he had completed the warrant
application, except for inserting the statutes that were allegedly violated. The factual statement in
the warrant included the following: “The facts based upon evidence is that James Waite Goad is a
7
discovered plaintiff had several felony convictions, he looked into the ownership of Meeker
Supply and Pawn to determine whether plaintiff was violating state law.11 He contacted the
Oklahoma Department of Consumer Credit, as it is the agency responsible for licensing and
regulating pawnshops in Oklahoma. The person he spoke with informed defendant Byrd that
Gerald Goad was the owner of Meeker Supply and Pawn and that plaintiff’s name did not
appear on any of the documents associated with the pawn shop. Doc. #56-1, pp. 4-5, ¶16.
Defendant Byrd did not receive any documents from the consumer credit department. The
license was issued to Meeker Supply and Pawn, LLC.
Defendant Byrd stated that, although he felt he had sufficient information to request
that charges be filed against plaintiff, he did not immediately send a charge packet to the
Lincoln County District Attorney’s Office.12 He testified that he instead contacted the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) in late summer or fall of
convicted felon in the State of Oklahoma with a lengthy criminal record and is still on probation in
Seminole County until 2016 according [to] public record . . . Under Oklahoma State Law, Goad is
not allowed to do conduct business or otherwise have any dealings with a pawn shop.” Doc. #5622, p. 38.
11
Individuals who have“a felony conviction which directly relates to the duties and
responsibilities of the occupation of pawnbroker” are ineligible for a pawnshop license. 59 Okla.
Stat. § 1503A. Plaintiff’s prior felony convictions include knowingly concealing stolen property.
Doc. #56-22, p. 36. Therefore, contrary to plaintiff’s assertion in his brief, defendant Byrd did not
make a false statement because “no such law exists,” Doc. #63, p. 17, ¶37(B) , when he declared
that he was “aware of state laws that prohibited convicted felons from owning or operating a
pawnshop.” Doc. #56-1, p.4,¶14.
12
Plaintiff asserts that “Chief Byrd had no evidence that Mr. Goad did not have an
ownership interest in Meeker Supply and Pawn, LLC.” Doc. #63, p. 18, ¶40. A statement from an
employee of the Department of Consumer Credit is evidence. It is not documentary evidence, but
it is evidence.
8
2012 and asked it to investigate Meeker Supply and Pawn. He stated he was informed that
undercover agents would be sent to the pawn shop to attempt to buy or sell firearms and that
it would take a number of months for ATF to complete its investigation. Defendant Byrd
said he put his investigation on hold and waited until he heard back from the Bureau.
Plaintiff disputes that defendant Byrd began investigating him in 2012, as he did not
open an official case file on plaintiff until March 7, 2013. Plaintiff also points to the lack of
any corroboration of defendant Byrd’s conversations with ATF.13
In March 2013, defendant Byrd said he learned from ATF14 that agents were not able
to purchase or sell a firearm at the pawn shop and did not intend to pursue any federal
charges at that time. Defendant Byrd indicates he then finalized the documents needed for
the charge packet and submitted the request for criminal charges to the Lincoln County
District Attorney’s Office. One of those documents was an Application for Warrant of
Arrest. Though it was notarized on March 7, 2013, it was dated at the top, July 5, 2012.
Defendant Byrd explained the discrepancy was “[p]robably because I had prepared this some
time ago waiting to hear what was going on in case ATF hadn’t – if they couldn’t get
something going on within that several month period of time, I guess.” Doc. #67-2, p. 5.
13
Defendants submitted additional evidence supporting the conversations, but not until their
reply brief.
14
There is a conflict between defendant Byrd’s declaration and his deposition testimony as
to whether he called ATF or someone from the Bureau called him, but the difference is not material.
Compare Doc. #56-1, p. 5, ¶19 with Doc. #63-6, p. 6. Plaintiff also points out that in his deposition
defendant Byrd stated he waited a few months and called ATF and in his declaration he stated that
he heard back from ATF in approximately March. Id. Again, the distinction is not material for
purposes of resolving the motion.
9
He said he drafted the warrant application around July 12, 2012. Id.
Pam Hammers, an Assistant District Attorney for Lincoln County, decided to pursue
criminal charges against plaintiff and filed an information on March 20, 2013, which charged
plaintiff with preparing false evidence, a violation of 21 Okla. Stat. § 453. The charge was
based on plaintiff’s statement in his citizen’s complaint that he owned Meeker Supply and
Pawn when the documents submitted regarding the pawnshop to the Department of
Consumer Credit indicated Gerald Goad was the owner.
When he learned a warrant had been issued for his arrest, plaintiff turned himself in
at the Lincoln County Jail. After the criminal case was initiated, defendant Byrd did not have
any contact with Ms. Hammers while the case was being prosecuted and no one from the
Town of Meeker had any involvement in the case. The charge against plaintiff was
dismissed without prejudice on August 7, 2013. Ms. Hammers testified that her decision to
dismiss was not a comment on plaintiff’s guilt or innocence. She also testified that no one
from the town of Meeker pressured the Lincoln County District Attorney’s office to file
charges against plaintiff.
Analysis15
First Claim
In his first claim, plaintiff asserts four, or perhaps five, separate claims under § 1983
15
As almost an afterthought, defendant Byrd asserted at the end of his brief that he was
entitled to qualified immunity. Neither party applied the typical qualified immunity analysis to
plaintiff’s claims. Defendant Byrd did not contend that any of the rights at issue were not clearly
established, but rather claimed there had not been a constitutional violation.
10
against both defendants. He alleges he was denied his right to free speech, to petition the
government for a redress of grievances, and to have the assistance of counsel. He also
alleges he was denied due process and was subjected to an unlawful search and seizure and
a wrongful arrest. Plaintiff alleges a retaliation claim under § 1983 in his second claim and
malicious prosecution and/or abuse of process under both federal and state law in his third
claim. In his fourth and fifth claims he alleges false arrest and intentional infliction of
emotional distress under state law. The last claim is asserted solely against defendant Byrd.
Each claim will be addressed separately.
Initially, the court notes that plaintiff’s response does not correlate to defendants’
motion, leaving it to the court to try and determine which parts of defendants’ motion
plaintiff is responding to and which claims he has abandoned. Plaintiff does not address
defendants’ motion insofar as it seeks summary judgment on his claims based on asserted
violations of his First Amendment rights to free speech and to petition the government for
redress of grievances, or his claim that he was denied the assistance of counsel. He therefore
confessed those claims, LCvR7.1(g), and summary judgment will be entered in defendants’
favor on those claims. Plaintiff’s due process claim, clarified in his response brief as being
one for substantive due process, also fails. “As the Supreme Court explained in Albright v.
Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 , a constitutional challenge
based on a claim that a prosecution lacked probable cause must be brought under the specific
guarantees of the Fourth Amendment rather than the generalized guarantee of substantive due
process.” Pino v. Higgs, 75 F.3d 1461, 1469 (10th Cir. 1996); see Becker v. Kroll, 494 F.3d
11
904, 918 (10th Cir. 2007) (“We think the unavoidable construction of Albright is that no
§1983 claim will arise from filing criminal charges without probable cause under the
substantive due process protections of the Fourteenth Amendment.”).
The remaining claims asserted in plaintiff’s first claim – search and seizure and
wrongful arrest – relate to the charge that was filed against him in Lincoln County. They will
be discussed in conjunction with his fourth claim for false arrest.
Second Claim – Retaliatory Prosecution
In his second claim, plaintiff contends defendants retaliated against him because he
had engaged in several constitutionally protected activities. He asserts a sign was posted in
front of his pawn shop about a speed trap the Meeker Police Department had set up in the
area, he filed a citizen’s complaint and he hired an attorney to represent him in his speeding
ticket case. As a result of these acts, plaintiff asserts, “[d]efendants sought a frivolous and
baseless arrest warrant that resulted in a felony charge being filed” against him.16 Doc. #63,
p. 32.
To establish a § 1983 retaliation claim against non-immune officials, [plaintiff]
must plead and prove (1) that [he was engaged in a constitutionally protected
activity; (2) that a defendant's action caused [him] to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that
activity; and (3) that a defendant's action was substantially motivated as a
response to [his] exercise of [his] First Amendment speech rights. [He] also
must plead and prove the absence of probable cause for the prosecution.
16
To the extent plaintiff had asserted a separate First Amendment retaliation claim based on
the speeding ticket in his complaint, in addition to a retaliatory prosecution claim, he abandoned
it by failing to pursue it.
12
Becker, 494 F.3d at 925 (internal citations omitted).
The presence or absence of probable cause is determinative here. There are aspects
of plaintiff’s evidence – such as the timing of Byrd’s submission of the application relative
to plaintiff’s request for the personnel file – which would support an inference of retaliatory
motive on Byrd’s part. However, in evaluating the existence of probable cause in the context
of a § 1983 claim, the court makes an independent and objective determination. Fogarty v.
Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008). “[A]n officer's own subjective reason for
the arrest is irrelevant . . . .” Id.; see Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“Our
cases make clear that an arresting officer's state of mind (except for the facts that he knows)
is irrelevant to the existence of probable cause.”). Applying that standard, the court
concludes plaintiff has not met his burden of demonstrating the absence of probable cause.
“Probable cause exists if facts and circumstances within the arresting officer's
knowledge and of which he or she has reasonably trustworthy information are sufficient to
lead a prudent person to believe that the arrestee has committed or is committing an offense.”
Johnson v. Lindon City Corp., 405 F.3d 1065, 1068 (10th Cir. 2005) (internal quotation
marks omitted). Defendant Byrd knew plaintiff stated in a sworn statement that he was the
owner of Meeker Supply and Pawn. It is undisputed that he also had been told by the
Oklahoma Department of Consumer Credit, the agency that licensed and regulated
pawnshops in Oklahoma, that plaintiff’s name did not appear on any of the documents
associated with Meeker Supply and Pawn and that Gerald Goad, not plaintiff, was the owner
13
of the pawnshop.17 The court concludes defendant Bryd could presume the information
provided by the Department of Consumer Credit18 was reliable and he therefore had
reasonable grounds for believing plaintiff had violated 21 Okla. Stat § 453, by making a
false sworn declaration in his citizen’s complaint that he owned Meeker Supply and Pawn.
He also had a reasonable basis for believing plaintiff had violated 59 Okla. Stat. §§1503A
and 1512(C) by operating a pawnshop after a felony conviction and without a licence. In
other words, the undisputed facts show probable cause to have existed for the arrest warrant
and plaintiff’s prosecution.19 See Pino, 75 F.3d at 1469 (“‘The Constitution does not
guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of
action for every defendant acquitted—indeed, for every suspect released.’”) (quoting Baker
v. McCollan, 443 U.S. 137, 145 (1979)).
17
Plaintiff did not dispute either that defendant Byrd called the Department of Consumer
Credit or that he was informed that Gerald Goad was the owner. See Doc. #56, p. 20, ¶ 39; Doc.
#63, p. 17, ¶39. While plaintiff refers to defendant Byrd’s deposition testimony that he was told “it
was under Gerald Goad,” his testimony is not in conflict with his statement in his declaration that
he was told that Gerald Goad was the owner of Meeker Supply and Pawn.
18
ADA Hammers indicated she also relied on information provided to her by the Department
of Consumer Credit as the basis for her conclusion that plaintiff did not own Meeker Supply and
Pawn, LLC and thus that probable cause existed for charging plaintiff with preparing false
evidence. Doc. #56-22, pp. 11-14; 22-24. She endorsed Lindsey Lundy from the Department of
Consumer Credit as a witness for the State of Oklahoma on the Information. Doc. #56-22, pp. 3435.
19
Plaintiff did not raise any other defense to the applicability of 21 Okla. Stat. § 453 other
than that he did not make a false statement. He states in his response to defendants’ factual
statement that “the charge does not fit the actual criminal statute,” but does not develop the
argument in his brief. Doc. #63, p. 20, ¶43. While there may be some basis for questioning the
applicability of the statute, the court will not attempt to resolve an argument that was not adequately
briefed. See Rieck v. Jensen, 651 F.3d 1188, 1191 n.1 (10th Cir. 2011) (“But an argument is not
preserved by merely alluding to it in a statement of facts.”).
14
Plaintiff challenges defendant Byrd’s ability to rely merely on information he received
over the telephone from the Department of Consumer Credit. He essentially contends
defendant Bryd should have obtained documents from the Department and if he had, “he
would have seen that DOCC does not request a copy of an operating agreement and does not
require a limited liability company applicant to list all owners of the LLC.” Doc. #63, p. 17.
Plaintiff offers nothing, though, to support the assertion that an officer cannot rely on oral
statements as a basis for determining probable cause. Further, the license application and
state law do not support plaintiff’s suggestion in any event. Under part C of the pawnbroker
license application, which is “[t]o be completed only if applicant is a limited liability
company” there are four lines. Under each is written “Full Name of Member.” Doc. #56-24,
p. 26. Meeker Supply and Pawn, LLC completed an Oklahoma Pawnshop License
application and a renewal application. On both the only “member” listed is Gerald V.
Goad.20 Clearly the intent is that each member of the LLC is expected to sign or be identified
in the application.21 Section 1504(A) of Title 59, enacted prior to the passage of the
Oklahoma Limited Liability Company Act, requires that:
Applications for a pawnshop license shall be under oath and shall state the full name and
place of residence of the applicant. If the applicant is a partnership, the full name and place
of residence of each member thereof shall be stated. If the applicant is a corporation, the full
name and place of residence of each officer or major stockholder thereof shall be stated.
20
Plaintiff’s wife sent an email to the Department of Consumer Credit regarding the
pawnshop’s application, in which she stated that “[t]he Pawn Shop is a single member LLC . . . .”
Doc. #56-8, p. 152.
21
A “member’ of a limited liability company “means a person with an ownership interest in
a limited liability company . . . .” 18 Okla. Stat. § 2001(14).
15
Regardless, the court concludes defendant Byrd was not obligated to request the
pawnshop’s licensing paperwork from the Department of Consumer Credit prior to making
the probable cause determination. He could rely on the information provided by the agency
in assessing whether plaintiff had provided false information in conjunction with his citizen’s
complaint.
As plaintiff has not demonstrated a factual dispute as to the circumstances showing
probable cause for the charge of preparing false evidence filed against him, his claim of
retaliatory prosecution fails. Summary judgment in defendants’ favor will be entered on that
claim.
Third Claim – Malicious Prosecution/Abuse of Process
Plaintiff’s third claim is for malicious prosecution and/or abuse of process under both
§ 1983 and state law. The presence of probable cause forecloses plaintiff’s malicious
prosecution claim under § 1983, Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir.
2007), and state law. Parker v. City of Midwest City, 850 P.2d 1065, 1067 (Okla.1993).
Summary judgment will be entered in defendants’ favor on those claims and also on
plaintiff’s abuse of process claim, as it is in essence one for malicious prosecution. Plaintiff
is alleging the malicious use of process, not the “improper use of process after it has been
issued.” Wolford v. Lasater, 78 F.3d 484, 490 (10th Cir. 1996) (internal quotation marks
omitted).
Fourth Claim – False Arrest
In his fourth claim, plaintiff asserts a claim for false arrest under state law. He also
16
asserted a wrongful arrest claim under § 1983, as well as unlawful search and seizure claims.
Plaintiff’s false/wrongful arrest claims fail due to the court’s conclusion that the undisputed
facts show probable cause to have existed for his arrest. Plaintiff’s search and seizure claims,
which are based on the alleged baselessness of the charge filed against him in Lincoln
County, fail as plaintiff was neither searched nor seized by anyone from the Meeker Police
Department and the charge was supported by probable cause. Summary judgment will
therefore be entered in defendants’ favor on these claims.22
Fifth Claim – Intentional Infliction of Emotional Distress
Plaintiff did not respond to defendants’ motion insofar as it sought summary judgment
on plaintiff’s claim for intentional infliction of emotional distress. He thereby confessed the
claim, LCvR7.1(g), and summary judgment as to it will be entered in defendant Byrd’s favor.
Conclusion
If the disposition of the present motion turned on Chief Byrd’s motivation for
pursuing criminal charges against Mr. Goad, summary disposition of plaintiff’s claims would
not be appropriate. It is possible that a jury might accept Chief Byrd’s explanation for the
handling and timing of the charges – that he always intended to pursue potential violations
in some way and was waiting on ATF to conclude its investigation of Mr. Goad before
deciding what to do. It is also possible that a jury might conclude – based on the nature of
the charges, the timing of their pursuit, and Mr. Goad’s history with the police department
22
In light of the probable cause determination and plaintiff’s abandonment of several of his
constitutional claims, it is unnecessary to resolve the issues raised as to potential municipal liability.
17
– that Chief Byrd sought criminal charges based on some retaliatory motive. However, as
discussed above, the claims at issue here turn on the presence or absence of probable cause,
which is an objective determination based on what Chief Byrd knew, rather than on what his
subjective motivations were.
Accordingly, defendants’ motion [Doc. #55] is GRANTED and summary judgment
is GRANTED in favor of defendants and against plaintiff as to all claims
IT IS SO ORDERED.
Dated this 24th day of April, 2015.
18
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