EKJ et al v. Roberts et al

Filing 159

ORDER granting in part and denying in part 76 defendant Derrick Lynn Ware's Motion to Dismiss Second Amended Complaint (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 2/24/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ELBERT KIRBY, JR., and
CALEB MATTHEW MEADOWS,
Plaintiffs,
vs.
ERIC WILLIAM ROBERTS, in his
individual capacity, et al.,
Defendants.

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Case No. CIV-14-906-M

ORDER
Before the Court is defendant Derrick Lynn Ware’s (“Ware”) Motion to Dismiss Second
Amended Complaint, filed May 5, 2015. On May 28, 2015, plaintiffs filed their response.
I.

Standard For Dismissal
Regarding the standard for determining whether to dismiss a claim pursuant to Federal Rule

of Civil Procedure 12(b)(6), the United States Supreme Court has held:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.”
Id. at 679 (internal quotations and citations omitted). Additionally, “[a] pleading that offers labels

and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does
a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. at
678 (internal quotations and citations omitted). A court “must determine whether the complaint
sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief
under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (internal
quotations and citation omitted). Further, “[a] court reviewing the sufficiency of a complaint
presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable
to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). Finally, the Court is
mindful that Haines v. Kerner, 404 U.S. 519 (1972), requires a liberal construction of pro se
complaints; however, the Court is not required to imagine or assume facts in order to permit a
complaint to survive. Hall, 935 F.2d at 1109-10.
Additionally, because 42 U.S.C. § 1983 is a vehicle for imposing personal liability on
government officials, the Tenth Circuit has stressed the need for careful attention to particulars,
especially in lawsuits involving multiple defendants, such as the instant case. See Pahls v. Thomas,
718 F.3d 1210, 1226 (10th Cir. 2013). Further,
[I]t is particularly important that plaintiffs make clear exactly who is
alleged to have done what to whom, . . . as distinguished from
collective allegations. When various officials have taken different
actions with respect to a plaintiff, the plaintiff’s facile, passive-voice
showing that his rights “were violated” will not suffice. Likewise
insufficient is a plaintiff’s more active-voice yet undifferentiated
contention that “defendants” infringed his rights. Rather, it is
incumbent upon a plaintiff to identify specific actions taken by
particular defendants in order to make out a viable § 1983 . . . claim.
The same particularized approach applies with full force when a
plaintiff proceeds under a theory of supervisory liability.
Id. at 1225-26 (internal quotations and citations omitted)(emphasis in original).
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II.

Discussion
In their Second Amended Complaint, plaintiffs assert the following causes of action against

Ware: (1) unconstitutional search and seizure/deprivation of liberty (First Cause of Action); (2)
unconstitutional search and seizure/deprivation of liberty (Second Cause of Action); (3)
unconstitutional search and seizure/deprivation of liberty (Fifth Cause of Action); (4) conspiracy
of attempt to kill by use of a firearm (Sixth Cause of Action); (5) conspiracy to kidnap (Seventh
Cause of Action); (6) excessive bail (Eighth Cause of Action); (7) right to confront witness (Ninth
Cause of Action); (8) right to due process (Tenth Cause of Action); (9) conspiracy to interfere with
civil rights (Eleventh Cause of Action); (10) assault and battery (Twelfth Cause of Action); (11)
attempt to kill with deadly weapon (Thirteenth Cause of Action); (12) kidnap (Fourteenth Cause of
Action); (13) Oklahoma civil rights violation - excessive force (Fifteenth Cause of Action); and (14)
breach of contract (Eighteenth Cause of Action). In its February 17, 2015, the Court did not dismiss
the First Cause of Action, Second Cause of Action, Thirteenth Cause of Action, and the Fifteenth
Cause of Action against Ware that are reasserted in plaintiffs’ Second Amended Complaint. Ware
now moves to dismiss all of the claims against him except for those that the Court previously did
not dismiss.
A.

Unconstitutional search and seizure/deprivation of liberty (Fifth Cause of Action)

In their Fifth Cause of Action against Ware, plaintiffs assert a claim for unconstitutional
search and seizure/deprivation of liberty. Having carefully reviewed plaintiffs’ Second Amended
Complaint1, and presuming all of plaintiffs’ factual allegations are true and construing them in the

1

The Court would note that plaintiffs incorporate the first sixty-one (61) paragraphs of their
First Amended Complaint into their Second Amended Complaint, as well as incorporating their
Judicial Notice: Memorandum of Law and Authorities: Unlawful Warrantless Arrest previously filed
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light most favorable to plaintiffs, the Court finds plaintiffs have failed to state a claim for
unconstitutional search and seizure/deprivation of liberty against Ware in their Fifth Cause of
Action. Specifically, the Court finds that plaintiffs have failed to set forth sufficient facts in relation
to Ware to plausibly state a claim for unconstitutional search and seizure/deprivation of liberty in
their Fifth Cause of Action; plaintiffs simply make conclusory allegations in their Fifth Cause of
Action. Further, the Court finds the allegations set forth in the Second Amended Complaint are not
sufficient to allow the Court to draw the reasonable inference that Ware is liable for the misconduct
alleged. Accordingly, the Court finds that plaintiff’s Fifth Cause of Action against Ware should be
dismissed.
B.

Conspiracy of attempt to kill by use of a firearm (Sixth Cause of Action)

In their Sixth Cause of Action, plaintiffs assert a claim for conspiracy to attempt to kill by
use of a firearm. “To demonstrate the existence of a conspiratorial agreement it simply must be
shown that there was a single plan, the essential nature and general scope of which was known to
each person who is to be held responsible for its consequences.” Snell v. Tunnell, 920 F.2d 673, 702
(10th Cir. 1990) (internal quotations and citation omitted).
In their Second Amended Complaint, plaintiffs make the following allegations regarding this
cause of action:
118.

119.

The Defendants Roberts, Ware, Fausett, and Kirk were acting
under color of law at the time of the interaction with the
Plaintiffs without a legal basis or probable cause.
Defendants Roberts, Ware, Fausett and Kirk exceeded their
jurisdiction, henceforth violating the secured Constitutional

in this case. Any reference to the Second Amended Complaint in this Order includes those portions
of the First Amended Complaint and the Judicial Notice incorporated into the Second Amended
Complaint.
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120.

121.

122.

Rights of the Plaintiffs as articulated at the Fourth, Fifth, and
Fourteenth Amendment to the Constitution of the United
States of America.
The Defendants Kirk, Roberts, and Fausett conspired with
Defendant Ware to take the life of the Plaintiffs, Elbert Kirby,
Jr., and Caleb Meadows.
The Defendants willingly and knowingly conspired against
the Plaintiffs as the Defendants Kirk, Roberts, and Fausett
failed to halt and prevent, much less apprehend Defendant
Ware as Defendant Ware attempted to kill the Plaintiffs. This
evidences that the defendants had a unanimous, single plan,
which they formed to kill the Plaintiffs.
As a result of the above described conduct of Defendant
Ware, Roberts, Fausett, and Kirk, Elbert Kirby, Jr., and Caleb
Meadows suffered damages in the form of mental, physical,
and emotional pain and were deprived of the right to be free
from unlawful and excessive force as guaranteed under the
Fourth, Fifth, and Fourteenth Amendment to the Constitution
of the United States of America, in an amount not less than 2
million dollars of United States Currency per Plaintiff to be
proven at trial and determined by a jury.

Second Amended Complaint at ¶¶ 118-122. The Court finds these allegations are merely conclusory
allegations and plaintiffs have not set forth sufficient factual allegations to plausibly show there was
a single plan amongst Ware and the other defendants to attempt to kill by use of a firearm.
Accordingly, the Court finds that plaintiffs’ Sixth Cause of Action against Ware should be
dismissed.
C.

Conspiracy to kidnap (Seventh Cause of Action)

In their Seventh Cause of Action, plaintiffs assert a claim for conspiracy to kidnap. In their
Second Amended Complaint, plaintiffs allege the following regarding the conspiracy to kidnap:
79.

The defendants possessed a single plan to unlawfully take the
Plaintiffs. The Defendants frequently visited their vehicle
together for extended periods of time to conspire and
formulate their single plan to unlawfully and illegally kidnap
the Plaintiffs as the Defendants were aware that there was no

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128.

129.

probable cause, reasonable suspicion, or warrant to justly
detain the Plaintiffs and deprive the Plaintiffs of their Liberty.
*
*
*
The Defendants Kirk, Ware, and Fausett willingly and
knowingly conspired to kidnap the Plaintiffs, Elbert Kirby,
Jr., and Caleb Meadows when they improperly restrained the
Plaintiffs of their liberty even in light of the facts that the
Plaintiffs were to be permitted to go upon their way freely.
The defendants acted with one plan, plotting to keep the
Plaintiffs restrained of their liberty when the defendants had
knowledge and knew the Plaintiffs had committed no crime
nor executed any arrest-able offense.

Second Amended Complaint at ¶¶ 79, 128, 129.
Having carefully reviewed the Second Amended Complaint, and presuming all of plaintiffs’
factual allegations are true and construing them in the light most favorable to plaintiffs, the Court
finds plaintiffs have set forth sufficient factual allegations to state a claim for conspiracy to kidnap
against Ware. The Court finds the factual allegations set forth in the Second Amended Complaint
are sufficient to allow the Court to draw the reasonable inference that Ware is liable for the
misconduct alleged. Accordingly, the Court finds that plaintiffs’ Seventh Cause of Action should
not be dismissed.
D.

Excessive Bail (Eighth Cause of Action)

In their Eighth Cause of Action, plaintiffs assert a claim for excessive bail. Having carefully
reviewed the Second Amended Complaint, the Court finds plaintiffs have failed to state a claim for
excessive bail against Ware. Specifically, the Court finds that the allegations set forth in relation
to this cause of action are not sufficient to allow the Court to draw the reasonable inference that
Ware is liable for the misconduct alleged. Accordingly, the Court finds that plaintiffs’ Eighth Cause
of Action against Ware should be dismissed.

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E.

Right to confront witness (Ninth Cause of Action)

In their Ninth Cause of Action, plaintiffs assert a claim for right to confront witness. Having
carefully reviewed the Second Amended Complaint, the Court finds plaintiffs have failed to state
a claim. Specifically, the Court finds that plaintiffs have set forth no specific factual allegations
relating to Ware regarding this claim. Plaintiffs simply use the term “Defendants” or collectively
“Defendants Roberts, Ware, Fausett and Kirk” in relation to this claim, without specifically
identifying the specific actions a specific defendant performed. The Court, therefore, finds the
allegations set forth in relation to this cause of action are not sufficient to allow the Court to draw
the reasonable inference that Ware is liable for the misconduct alleged. Accordingly, the Court finds
that plaintiffs’ Ninth Cause of Action against Ware should be dismissed.
F.

Right to due process (Tenth Cause of Action)

Plaintiffs asserted this same cause of action against Ware in their First Amended Complaint,
and the Court dismissed this cause of action against Ware. The only additional allegation set forth
in the Second Amended Complaint states that “Defendants neither provided the Plaintiffs with a
warrant at the time of the unlawful detention, nor immediately after the Plaintiffs had been falsely
arrested.” Second Amended Complaint at ¶ 162. In this new allegation, plaintiffs use the term
“Defendants” without specifically identifying the specific actions a specific defendant performed.
The Court, therefore, finds the allegations set forth in relation to this cause of action are still not
sufficient to allow this Court to draw the reasonable inference that Ware is liable for the misconduct
alleged. Accordingly, the Court finds that plaintiff’s Tenth Cause of Action against Ware should
be dismissed.

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G.

Conspiracy to interfere with civil rights (Eleventh Cause of Action)

In their Eleventh Cause of Action, plaintiffs assert a claim for conspiracy to interfere with
civil rights. In their Second Amended Complaint, plaintiffs make the following allegations
regarding this cause of action:
165.

166.

167.
168.

169.

170.

171.

All Defendants were acting under color of law at the time of
the interaction with the Plaintiffs without a legal basis or
probable cause.
The Defendant Roberts, Ware, Fausett, and Kirk together
conspired to injure, oppress, threaten, and intimidate the
Plaintiffs when the Defendants planned to act together
deprive the Plaintiffs of their Fourth, Fifth, Sixth, and
Fourteenth Amendments rights as secured by the Constitution
of the United States of America.
All of Defendants acted in concert to set the Plaintiffs’ bail
above and beyond any reasonable amount.
The defendants segregated and discriminated against the
Plaintiffs calling them the “nigger” and “faggot”. In
particular the Lincoln County Defendants referred to the
Plaintiffs in this vain on numerous occasions.
All of the Defendants acted with one plan, in one accord to
restrain the Plaintiffs of their liberty when in the Defendants’
knowledge they knew the Plaintiffs should not have been
arrested as they knew of no complaint or cause (arrest-able,
felonious offense, probable cause or warrant) which was
impending of the Plaintiffs.
By the Lincoln County Defendants’ neglect to ensure that the
Plaintiffs were properly apprised of their rights in knowing
the amount of bail, setting a reasonable bail, and continuing
in concert with Defendants Ware, Roberts, and Kirk, the
Lincoln County Defendants conspired to further deprive the
Plaintiffs of their Eight Amendment Right.
As a result of the above described conspiracy of all the
Defendants, Elbert Kirby, Jr., and Caleb Meadows suffered
damages in the form of mental, physical, and emotional pain
and due to the Defendants conspiracy to interfere with the
Plaintiffs’ inalienable rights which are secured by the
Constitution of the United States of America, in an amount
not less than 2 million dollars of United States Currency per
Plaintiff to be proven at trial and determined by a jury.

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Second Amended Complaint at ¶¶ 165-171. The Court finds these allegations are merely conclusory
allegations and plaintiffs have not set forth sufficient factual allegations to plausibly show there was
a single plan amongst Ware and the other defendants to interfere with civil rights. Accordingly, the
Court finds that plaintiffs’ Eleventh Cause of Action against Ware should be dismissed.
H.

Assault and Battery (Twelfth Cause of Action)

In their Twelfth Cause of Action, plaintiffs assert a claim for assault and battery.
Specifically, plaintiffs allege that defendants Ware and Roberts “together strangled by the neck
Caleb Meadows as Ware pulled Caleb Meadows, and Roberts wrapped a seat belt around Caleb
Meadows’ neck and both Defendants simultaneously pulled the Plaintiff attempting to ‘split’ the
Plaintiff in two pieces.” Second Amended Complaint at ¶ 179. The Court finds that the above
allegation is sufficient to state an assault and battery claim against Ware. Accordingly, the Court
finds that plaintiffs’ Twelfth Cause of Action against Ware should not be dismissed.
I.

Kidnap (Fourteenth Cause of Action)

In their Fourteenth Cause of Action, plaintiffs assert a kidnap claim. Having carefully
reviewed the Second Amended Complaint, and presuming all of plaintiffs’ factual allegations are
true and construing them in the light most favorable to plaintiffs, the Court finds plaintiffs have set
forth sufficient factual allegations to state a kidnap claim against Ware. The Court finds the factual
allegations set forth in the Second Amended Complaint are sufficient to allow the Court to draw the
reasonable inference that Ware is liable for the misconduct alleged. Accordingly, the Court finds
that plaintiffs’ Fourteenth Cause of Action against Ware should not be dismissed.

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J.

Breach of contract (Eighteenth Cause of Action)

In their Eighteenth Cause of Action, plaintiffs assert a claim for breach of contract. Under
Oklahoma law, in order to recover on a breach of contract claim, a plaintiff must establish: (1)
formation of a contract, (2) breach of the contract, and (3) damages as a direct result of the breach.
See Dig. Design Grp., Inc. v. Info. Builders, Inc., 24 P.3d 834, 843 (Okla. 2001). Having carefully
reviewed the Second Amended Complaint, and presuming all of plaintiffs’ factual allegations are
true and construing them in the light most favorable to plaintiffs, the Court finds plaintiffs have
failed to state a breach of contract claim. Specifically, the Court finds that plaintiffs have set forth
no facts showing any formation of a contract between plaintiffs and Ware. Accordingly, the Court
finds that plaintiffs’ Eighteenth Cause of Action against Ware should be dismissed.
III.

Conclusion
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART

Ware’s Motion to Dismiss Second Amended Complaint [docket no. 76] as follows:
(A)

The Court GRANTS the motion to dismiss as to the Fifth Cause of Action, Sixth
Cause of Action, Eighth Cause of Action, Ninth Cause of Action, Tenth Cause of
Action, Eleventh Cause of Action, and Eighteenth Cause of Action and DISMISSES
these causes of action against Ware, and

(B)

The Court DENIES the motion to dismiss as to the Seventh Cause of Action, Twelfth
Cause of Action, and Fourteenth Cause of Action.

IT IS SO ORDERED this 24th day of February, 2016.

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