Stout v. Long et al

Filing 85

MEMORANDUM OPINION, ORDER granting in part and denying in part 74 Plaintiff's Motion to Amend Second Amended Complaint. Signed by Honorable William P Johnson on 7/16/15. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

THERESA STOUT, as personal representative of the
Estate of Christopher Stout,
Plaintiff,
v.

Case No. 14-cv-427-WPJ

OKLAHOMA HIGHWAY PATROL TROOPER
DANNY LONG, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SECOND AMENDED COMPLAINT
THIS MATTER comes before the Court upon Plaintiff Theresa Stout‟s Motion for
Second Amended Complaint, (Doc. 74), filed April 17, 2015. Having reviewed the parties‟ briefs
and applicable law, the Court finds that Plaintiff‟s motion is well taken in part and, therefore, is
GRANTED IN PART AND DENIED IN PART as herein described.
BACKGROUND
Given the voluminous filings to date, the Court assumes the reader‟s familiarity with the
factual allegations underlying this action. However, the Court takes some time to highlight the
important procedural developments.
Plaintiff‟s operative First Amended Complaint brings three claims. Count I alleges
Fourth, Fifth, and Fourteenth Amendment violations against all Defendants pursuant to 42
U.S.C. § 1983. Count II asserts a claim of excessive force against all Defendants under the
Oklahoma Constitution. Count III alleges a tort claim of “negligence/wrongful death” against all
Defendants.

Prior to the filing of Plaintiff‟s First Amended Complaint, the United States filed a Notice
of Substitution pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(1). After Plaintiff was granted
leave to file her First Amended Complaint, the United States filed a second Notice of
Substitution. With the exception of the individual-capacity claims in Count I, these notices had
the effect of substituting the United States as the proper Defendant for all claims against
Defendants Danny Long, James Leone, Chad Pope, Ed Grimes, Kevin Johnson, Callen Stephens,
and Tarran Groom (together “the Individual Defendants”).
The Court later overruled Plaintiff‟s objections to the United States‟ Westfall Act
substitution. See (Doc. 68), Memorandum Opinion and Order. The Court also simultaneously
dismissed with prejudice Counts I and II against the United States. See id. In an order filed
March 27, 2015, the Court allowed Plaintiff twenty-eight days to file her proposed Motion for
Reconsideration. See (Doc. 72), Memorandum Opinion and Order.
Plaintiff never filed a Motion for Reconsideration. Instead, on April 17, 2015, Plaintiff
filed the instant motion seeking to amend her complaint a second time, attaching a proposed
Second Amended Complaint. As grounds, Plaintiff simply states that her amended complaint
dismisses Defendant Oklahoma ex rel. Oklahoma Department of Public Safety (“ODPS”) and
“remove[s]” Count II in full.
The United States and the Individual Defendants oppose Plaintiff‟s motion.1 Aside from
eliminating Count II and all claims against ODPS, the proposed Second Amended Complaint
also removes the United States as a Defendant in the caption, adds new factual allegations, and
adds an entirely new claim that Plaintiff has not previously alleged and that Plaintiff does not
address in her motion. The proposed amended pleading also continues to allege Plaintiff‟s

1

Because no other Defendant in this action filed a responsive brief, the Court hereafter uses the term “Defendants”
to refer to the United States and the Individual Defendants unless context indicates otherwise.

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§ 1983 claim against all Defendants, even though the Court has dismissed this claim as to the
United States. Defendants construe Plaintiff‟s motion to amend as seeking to reverse the Court‟s
previous rulings on Westfall Act substitution under a more liberal standard of review than is used
to address a motion for reconsideration. Accordingly, Defendants oppose amendment as unduly
prejudicial and futile.2
In her reply brief, Plaintiff disavows any intention of “reversing” the Court‟s previous
rulings through her proposed Second Amended Complaint. Instead, she states, she “only
attempts to preserve the dismissed claims should they be resurrected at a later date as a result of
information uncovered in discovery.” Plaintiff avers that additional discovery and requests filed
under the Freedom of Information Act “may reveal additional facts” relevant to whether the
Westfall Act substitution was merited. For the first time, Plaintiff acknowledges her effort to add
a new claim, asserts conclusorily that “[t]he United States suffers no prejudice as a result” of this
new claim, and then calls out Defendants for “carefully ignoring” the new claim in their response
brief.
Meanwhile, with the understanding that Plaintiff was seeking to dismiss ODPS, the Court
granted that party‟s pending motion to dismiss. See (Doc. 77), Order. Subsequently, Plaintiff
voluntarily dismissed all claims against Defendants Boards of County Commissioners of
Pottawatomie and Canadian Counties (together “the County Defendants”). (Doc. 84), Joint
Stipulation. As of this date, the only remaining Defendants to this action are the Individual
Defendants in their individual capacities (the § 1983 claim), the United States (the tort claim),
and the City of Oklahoma City (both claims).
2

Defendants also contend that the motion is moot, since Plaintiff only expressly bases her motion on a desire to
dismiss ODPS and the Court has already granted this relief. Although the Court agrees that any amendment on this
basis alone is not strictly necessary, the Court sees no harm in amending the pleading to remove references to
ODPS. Moreover, since Defendants recognize that Plaintiff is plainly seeking to amend her complaint in other ways,
the Court will consider those substantive requests to amend in light of Rule 15(a)(2)‟s liberal standards.

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LEGAL STANDARD
After a plaintiff has previously amended her pleadings, she may amend her complaint
only by leave of the court or upon written consent of the adverse parties. See FED. R. CIV. P.
15(a)(2). Rule 15(a) states that leave shall be freely given when justice so requires. Id. However,
if the court determines there is undue delay, bad faith, dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice, or
futility of the amendment, a court may deny leave to amend. Foman v. Davis, 371 U. S. 178, 182
(1962). “A court properly may deny a motion for leave to amend as futile when the proposed
amended complaint would be subject to dismissal for any reason . . . .” Bauchman for Bauchman
v. W. High Sch., 132 F.3d 542, 562 (10th Cir. 1997) (citations omitted).
DISCUSSION
Although Plaintiff does not acknowledge it in her motion, her proposed Second Amended
Complaint deviates substantially from her First Amended Complaint in several important ways.
See (Doc. 74 Ex. 1), Proposed Second Amended Complaint. The Court considers these changes
in detail to determine whether leave to amend should be granted in each instance.
I.

Captioned Defendants
As noted, the United States has substituted itself as the proper party for several

Defendants under the Westfall Act. Even before Plaintiff‟s objections to this substitution were
overruled, the Court had previously held that “until the Court rules otherwise, the United States
is a defendant in this action and any filed Amended Complaint should reflect that status.” See
(Doc. 35), Memorandum Opinion and Order. Accordingly, Plaintiff‟s First Amended Complaint
listed the United States as a party, and her proposed Second Amended Complaint states that
“[t]he United States has alleged that all actors were acting as United States Marshals” and that

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“the Court has allowed the substitution of all defendants [sic].” However, Plaintiff fails to list the
United States as a Defendant in the caption of her proposed Second Amended Complaint.
Plaintiff is mistaken in two respects. First, the Court has not “allowed the substitution” of
the United States—as the Court has previously explained, it is the United States‟ Westfall Act
certification itself that “ha[d] the effect of injecting it as a proper party.” See (Doc. 35),
Memorandum Opinion and Order. The Court has simply ruled that Plaintiff failed to overcome
the presumption in favor of this substitution. See (Doc. 68), Memorandum Opinion and Order, at
5-10. More importantly, the United States has not been substituted for “all Defendants,” but has
only certified substitution as to the Individual Defendants, and only in certain capacities. The
United States did not substitute itself for the Defendants that Plaintiff has now voluntarily
dismissed. See (Doc. 77), Memorandum Opinion and Order; (Doc. 84), Joint Stipulation of
Dismissal. Nor did the United States substitute itself in place of the City of Oklahoma City,
which remains an active Defendant in this case. Finally, the United States did not substitute itself
in place of the Individual Defendants with respect to the individual-capacity claims raised in
Plaintiff‟s § 1983 claim.
That said, the Court has previously ordered that any amended complaint filed by Plaintiff
should reflect that the United States is a Defendant in this action, and nothing in the progress of
this case has lessened this obligation. When Plaintiff ultimately files her Second Amended
Complaint, she shall ensure that the United States is listed as a Defendant in the case caption.
In a similar vein, Plaintiff has now voluntarily dismissed her claims against Defendants
ODPS and the County Defendants. See (Doc. 77), Memorandum Opinion and Order; (Doc. 84),
Joint Stipulation of Dismissal. Plaintiff shall ensure that her Second Amended Complaint, when
filed, does not list these Defendants in the case caption.

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II.

Proposed Count I
Count I as stated in the proposed Second Amended Complaint is essentially identical to

the same claim in the First Amended Complaint. Defendants contend that the claim should be
deemed futile because the Court has already found that it lacks subject-matter jurisdiction to
consider this claim as alleged against the United States. Plaintiff claims that she is merely
attempting to preserve the claim “should [it] be resurrected at a later date.”
The Court first reiterates that Count I has not been dismissed in full. Although the Court
has held that it lacks subject-matter jurisdiction as to this claim against the United States, that
party was only substituted as the appropriate Defendant with respect to the official-capacity
portion of the § 1983 claim against the Individual Defendants. See (Docs. 5, 51), Notices of
Substitution. Count I remains active against all other Defendants that have not already been
dismissed in this case, specifically the Individual Defendants in their individual capacities and
the City of Oklahoma City. The inclusion of Count I as to the Individual Defendants in their
individual capacities and the City of Oklahoma City remains appropriate.
On the other hand, the United States has substituted itself in place of the Individual
Defendants in their official capacities as to this claim, and the Court has previously concluded
that it lacks subject-matter jurisdiction to consider this claim against the United States. Plaintiff
concedes that its amendment does nothing to affect this ruling. “A proposed amendment is futile
if the complaint, as amended, would be subject to dismissal.” Anderson v. Suiters, 499 F.3d
1228, 1238 (10th Cir. 2007) (quoting Lind v. Aetna Health, Inc., 466 F.3d 1195, 1199 (10th Cir.
2006)). Because the Court would be forced to dismiss this claim as to the United States (and,
impliedly, the Individual Defendants in their official capacities) for lack of subject-matter
jurisdiction, the claim against the United States is futile. See Bauchman, 132 F.3d at 562

6

Plaintiff argues that facts uncovered during discovery may eventually warrant
reconsideration of the Court‟s earlier decision overruling Plaintiff‟s objections to substitution
under the Westfall Act. However, Plaintiff‟s mere speculation on this point does nothing to
alleviate the futility of her attempted amendment at this point in time. If a plaintiff fails to state a
claim in his initial pleading, the Court must dismiss the claim under Rule 12(b)(6), even if it is
conceivable that the plaintiff could one day discover additional support for the claim. Likewise,
Plaintiff cannot attempt to bring a futile claim now simply because she may eventually have a
foundation for that claim.
Upon filing her Second Amended Complaint, Plaintiff may include the § 1983 claim
alleged in Count I. However, when doing so, Plaintiff must specify that she only brings that
claim against the Individual Defendants in their individual capacities and the City of Oklahoma
City.3
III.

Former Count II
In her First Amended Complaint, Plaintiff brought a claim alleging “excessive force

pursuant to the Oklahoma Constitution Article 2 Section 30 and Bosh v. Cherokee County Bldg.
Authority.” Plaintiff states in her motion that the purpose of her proposed Second Amended
Complaint is to “remove[] this claim.” No Defendant has objected to this proposed amendment.
The Court will therefore allow Plaintiff to amend her complaint so as to remove this claim.
IV.

Proposed Count II
Plaintiff‟s proposed Count II, alleging “negligence/wrongful death,” is in all respects

identical to Count III in Plaintiff‟s First Amended Complaint. The United States has substituted
itself for all remaining Defendants to this claim except for the City of Oklahoma City, and the
Court has previously held that it retains jurisdiction over this claim to the extent that it states a
3

This order should not be construed as opining on the sufficiency of Plaintiff‟s claim against these Defendants.

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viable Federal Tort Claims Act (“FTCA”) negligence claim against the United States on a
failure-to-intervene theory. See (Doc. 68), Memorandum Opinion and Order, at 15-20.4 The City
of Oklahoma City has not challenged the viability of, or the Court‟s jurisdiction over, this claim
against it. Subject to the Court‟s previous ruling regarding its jurisdiction, the Court will allow
Plaintiff leave to amend her complaint so as to bring this claim as Count II of her Second
Amended Complaint.
Notably, as part of her proposed Count II, Plaintiff continues to assert that she is entitled
to punitive damages. The City of Oklahoma City has not challenged this assertion as to the claim
against it. However, the Court has previously recognized that “the FTCA prohibits the awarding
of punitive damages” against the United States. See id. (citing 28 U.S.C. § 2674). Thus, to the
extent that Plaintiff seeks punitive damages from the United States, such relief would be
improper. Although the Court will allow Plaintiff to assert a prayer for relief in the form of
punitive damages under her proposed Count II, this allowance is subject to the understanding
that Plaintiff may not recover punitive damages from the United States under this claim.
V.

Proposed Count III
Plaintiff‟s proposed Count III, purportedly brought against all Defendants, alleges

“excessive force pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971).” Plaintiff correctly highlights that Defendants do not address
this claim in their response brief. However, Plaintiff‟s assertion that Defendants “carefully
ignor[ed]” this claim is arguably disingenuous, given that Plaintiff herself failed to mention this
claim in her motion. Indeed, Plaintiff‟s motion only notes two effects of her proposed Second
Amended Complaint—the dismissal of ODPS, and the dismissal of her state constitutional claim.

4

As the Court has previously explained, “the Court reaches no conclusions [at this time] regarding the legal
sufficiency” of such a claim. See (Doc. 68), Memorandum Opinion and Order, at 19.

8

The Court is somewhat irritated by Plaintiff‟s attempt to allege an entirely new claim in this
action without expressly addressing the claim in her motion, only to accuse Defendants
themselves of ignoring the claim in their briefing.
Still, Rule 15(a) directs that leave to amend “shall be freely given when justice so
requires.” “If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman,
371 U.S. at 182. Given that no Defendant has challenged the proposed claim, the Court is
inclined to allow leave to so amend if the allegations in the complaint may warrant this claim.
Under Bivens, “an individual injured by a federal agent‟s alleged violation of the Fourth
Amendment may bring an action for damages against the agent.” FDIC v. Meyer, 510 U.S. 471,
484 (1994) (citing Bivens, 403 U.S. at 397). Since Bivens claims are limited to actions against
federal agents, such claims may not encompass relief against a municipality or its employees. Cf.
Trusdale v. Bell, 85 F. App‟x 691, 696 (10th Cir. 2003) (unpublished) (“[B]ecause all of the
defendants are alleged to be employees either of Oklahoma or municipal entities within
Oklahoma, a Bivens action is improper.” (citing Robbins v. Wilkie, 300 F.3d 1208, 1211-12 (10th
Cir. 2002))); see also Corr. Servs. Corps. v. Malesko, 534 U.S. 61, 68 (2001) (noting the
Supreme Court‟s reluctance “to extend Bivens liability to any . . . new category of defendants”).
Plaintiff‟s proposed Count III would be subject to dismissal for failure to state a claim if brought
against the City of Oklahoma City, and as such an amendment that allows such a claim to
proceed would be futile. See Bauchman, 132 F.3d at 562.
Nor may this claim be brought against either the United States or the Individual
Defendants in their official capacities. “The United States and its agencies are not subject to suit
under Bivens.” Dahn v. United States, 127 F.3d 1249, 1254 (10th Cir. 1997) (citing Meyer, 510

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U.S. at 484-85). Likewise, “[t]here is no such animal as a Bivens suit against a public official
tortfeasor in his or her official capacity.” Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001)
(internal citations omitted). Accordingly, Plaintiff‟s proposed Bivens claim against these
Defendants must also be denied as futile.
That leaves the Individual Defendants, whom the United States has certified were federal
employees acting within the scope of their federal employment. Nothing on the face of Plaintiff‟s
proposed Bivens claim against these Defendants suggests that the claim would be futile, and
Defendants lodge no such argument. Further, the Court does not construe the late addition of this
claim as an attempt “to present „theories seriatim‟ in an effort to avoid dismissal.” Cf. Minter v.
Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (quotation omitted). It appears that
Plaintiff‟s failure to bring this claim at an earlier time was not due to any improper purpose, but
instead was based on her vociferous opposition to the United States‟ position that the Individual
Defendants were acting within the scope of their federal employment. Now that the Court has
spoken unambiguously on the question of the United States‟ Westfall Act certification, the Court
sees no prejudice in allowing Plaintiff to assert her claims of constitutional violations through the
mechanism of a Bivens action.
Nonetheless, Plaintiff‟s Bivens claim against these Defendants is inherently in conflict
with her § 1983 against these same Defendants in Count I. Whereas “§ 1983 creates a cause of
action against individuals who violate federal law while acting „under color of state law,‟” David
v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir. 1996) (emphasis added), a Bivens
action may lie only against individuals acting under color of federal law, see Meyer, 510 U.S. at
484. The Individual Defendants were acting as either state or federal agents; it follows that they
could not be liable under both § 1983 and Bivens. The Court therefore construes Plaintiff‟s

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proposed Bivens claim against the Individual Defendants as brought in the alternative to her
§ 1983 claim against these same Defendants.5 Thus, Plaintiff should be allowed leave to amend
her complaint to include her proposed Count III, provided that Plaintiff expressly limits this
claim as against the Individual Defendants in their individual capacities, and provided that
Plaintiff notes that this claim is brought in the alternative to her § 1983 claim against these
Defendants.
VI.

Additional Factual Allegations
Finally, the Court notes that Plaintiff has included two paragraphs in the “Factual

Allegations” section of her proposed Second Amended Complaint that did not appear in her First
Amended Complaint. Defendants generally contend that Plaintiff is seeking the reversal of the
Court‟s earlier overruling of her objections to the United States‟ Westfall Act certification, and
they argue that such attempts should be rejected as unduly prejudicial and futile. Plaintiff
responds that she is not attempting to reverse the Court‟s earlier rulings.
Plaintiff‟s new allegations, included in proposed ¶¶ 35 and 36, are quoted in full:
35. On information and belief, there is not an organized program to ensure that the
individual Defendants are fully trained in the policies and procedures of the
United States Marshal‟s Service.
36. On information and belief, the individual Defendants were operating under
their respective agency‟s policies and procedures when they attempted to serve
the arrest warrant and shot and killed Mr. Stout and had there been any discipline
for their actions in attempting to serve that warrant, it would have been pursuant
to their respective agency‟s policies and procedures and not the policies of the
United States Marshal‟s Service.
(Doc. 74 Ex. 1), Proposed Second Amended Complaint, at 7-8.

5

Plaintiff‟s counsel in this action also represents the estate of the Decedent‟s girlfriend in a related case, and the
plaintiffs in that case expressly pleaded their Bivens claim as one brought “in the alternative.” See Stout v. Long, 15cv-379-WJ, Doc. 6, at 14 (W.D. Okla. Apr. 8, 2015) (First Amended Complaint). The Court assumes that Plaintiff
intended to do the same here.

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It is apparent that these allegations—concerning whether the Individual Defendants were
operating under federal policies or state and local policies—are intended as direct attacks on the
United States‟ Westfall Act certifications, which assert that the Individual Defendants were
acting within the scope of federal employment at all relevant times. See 28 U.S.C. § 2679(d)(1).
Plaintiff gives no other reason for the inclusion of these new factual allegations, and the Court
will not concoct such reasons for her. The Court has previously given Plaintiff leave to amend
for the express purpose of “lay[ing] a factual predicate . . . to challenge the [Westfall Act]
certification of the Attorney General.” (Doc. 35), Memorandum Opinion and Order, at 3. Her
failure to cure any deficiencies by including these allegations in her previous amended pleading
constitutes a basis for denying her leave to amend at this time. See Foman, 371 U.S. at 182
(allowing the denial of leave to amend for “repeated failure to cure deficiencies by amendments
previously allowed”).
Moreover, the Court agrees that allowing such leave now would unduly prejudice
Defendants. After the United States filed its initial Westfall Act certification, Plaintiff
successfully sought leave to amend her complaint. When the United States again certified
substitution under the Westfall Act, Plaintiff filed objections. The Court has overruled those
objections, yet Plaintiff is once again seeking to “lay a factual predicate . . . to challenge the
certification.” “Courts will properly deny a motion to amend when it appears that the plaintiff is
using Rule 15 to make the complaint „a moving target.‟” See Minter, 451 F.3d at 1206 (quotation
omitted). As Defendants observe, the liberal standards of Rule 15 do not negate “the proposition
that there must be an end finally to a particular litigation.” Pallottino v. City of Rio Rancho, 31
F.3d 1023, 1027 (10th Cir. 1994) (quotation omitted). The Court will not require Defendants to

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once again address the issue of Westfall Act substitution in this case.6 In the absence of a valid
stated reason for Plaintiff‟s failure to include these factual allegations in her previous pleadings,
the Court concludes that leave to amend on this basis should be denied. See id.
CONCLUSION
In summary, Plaintiff may file her proposed Second Amended Complaint, provided that
she first revises the document to conform with the dictates of this Memorandum Opinion and
Order, to wit:


Plaintiff must list the United States as a Defendant in the case caption and remove
Defendants ODPS and the County Defendants from the caption;



Plaintiff‟s proposed Count I must specify that this claim is only brought against the
Individual Defendants in their individual capacities and the City of Oklahoma City;



Plaintiff may include her proposed Count II, on the understanding that insofar as this
claim is brought against the United States, it is brought on an FTCA failure-tointervene theory and cannot lead to the recovery of punitive damages;



Plaintiff‟s proposed Count III must specify that this claim is only brought against the
Individual Defendants in their individual capacities, and that this claim is brought in
the alternative to Plaintiff‟s proposed Count I;



Plaintiff‟s proposed ¶¶ 35-36 may not be included in the pleading; and



any other conditions the Court has imposed in this Memorandum Opinion and Order.

Once this Second Amended Complaint is filed, the Court will construe Count I (the
§ 1983 claim) as brought against the Individual Defendants in their individual capacities and the
City of Oklahoma City; Count II (“negligence/wrongful death”) as against the United States and

6

Notably, the United States has not (yet) filed any Westfall Act certification in the related action, 15-cv-379-WJ.

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the City of Oklahoma City; and Count III (the Bivens claim) as against the Individual Defendants
in their individual capacities.
Plaintiff must file her revised Second Amended Complaint within fourteen (14) days of
the entry of this Memorandum Opinion and Order. Upon the filing of that pleading, Defendants
will have fourteen (14) days to file their responsive pleading(s).
SO ORDERED

__________________________________
UNITED STATES DISTRICT JUDGE

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