Bruning v. Guthrie City of et al

Filing 58

ORDER the partial motion to dismiss 16 filed by the City of Guthrie is granted in part and denied in part...it is denied as to the 1st and 5th causes of action; the partial motion to dismiss 17 filed by defendants Breland, Ahlgren and Devereaux i s granted; the motions to dismiss filed by defendants Haddock and Williams 18 , Griffin 29 , Tontz 31 and White 30 are granted; plaintiff's 2nd, 3rd, 7th and 8th causes of action are dismissed as to all defendants; the 6th cause of action is dismissed as to defendants Haddock and Williams; plaintiff has filed a motion to amend his complaint 55 which the court grants as to all the claims that are dismissed except for the 3rd and 8th causes of action; leave to amend those claims is denied as amendment would be futile; if plaintiff decides to amend any of the dismissed claims, the amended complaint must be filed by 09/01/2015. Signed by Honorable Joe Heaton on 08/18/2015. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARK BRUNING,
Plaintiff,
vs.
CITY OF GUTHRIE, OKLAHOMA,
ET AL.,
Defendants.

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NO. CIV-15-0003-HE

ORDER
Plaintiff Mark Bruning filed this action in state court against the City of Guthrie
(“City”), Sereniah Breland, the City Manager, Jim Ahlgren, the City Human Resources
Director, Damon Devereaux, the former City Police Chief, Gary Haddock a City police
officer, Jonathan Williams, a City police officer, Kyle White (“White”), Jill Ochs Tontz
(“Tontz”),1 an assistant district attorney, and Ann Griffin (“Griffin”), a state senator for
Logan County, alleging claims under both federal and state law. Plaintiff also seeks to
enforce an arbitration decision. The action was removed and all defendants have filed
motions to dismiss.2
When considering whether a plaintiff’s claims should be dismissed pursuant to Rule
12(b)(6) for failure to state a claim, the court accepts all well-pleaded factual allegations as
true and views them in the light most favorable to the plaintiff as the nonmoving party.

1

Ms. Tontz is now married to defendant White, but the court will refer to her as defendant
Tontz to avoid confusion.
2

Two of the motions are partial motions to dismiss.

S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014); Smith v. United States, 561 F.3d 1090,
1097 (10th Cir. 2009). All that is required is “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must,
though, contain “enough facts to state a claim to relief that is plausible on its face” and “raise
a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 555 (2007). “‘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.’” Shields, 744 F.3d at 640 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). As explained by the Tenth Circuit, the Twombly/Iqbal pleading standard “‘is a
middle ground between heightened fact pleading, which is expressly rejected, and allowing
complaints that are no more than labels and conclusions or a formulaic recitation of the
elements of a cause of action, which the Court stated will not do.’” Id. at 640-41 (quoting
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.2012)). Considering plaintiff’s
claims under this standard, the court concludes the City’s motion should be granted in part
and denied in part and the remaining defendants’ motions should be granted.
Background
Plaintiff alleges in his complaint3 that he has been employed by the City of Guthrie
since 1995, initially as a dispatcher and then as a police officer. As a police officer, he has
been a member of the bargaining unit represented by Fraternal Order of Police Lodge 105

3

Although the initial pleading is a petition because it was filed in state court, it will be
referred to as a complaint.
2

(“FOP Lodge #105"), which is a party to a collective bargaining agreement (“CBA”) with
the City of Guthrie. Plaintiff claims he met Heather White (“Heather”), the former spouse
of defendant Kyle White, through his job and they became friends, but nothing more, until
after her divorce on July 19, 2012. At that time, he asserts he and Heather established a
quasi-marriage type relationship and, sometime in July, he and Heather became formally
engaged.4
Plaintiff alleges that, after Heather’s divorce, Kyle White and his family began to
attempt to interfere with his relationship with Heather and that defendant Tontz “conspired
with Defendant Kyle White to continue to interfere” with it. Plaintiff claims White and
Tontz communicated with defendant Griffin during this period and convinced her that
plaintiff was harassing White because of his association with Heather.
Plaintiff alleges that on September 7, 2013, he was supervising City police officers
assigned to control crowds at an outdoor concert in Guthrie. He claims he was in the process
of directing the crowd away from an exit reserved for emergencies and handicapped persons
when White, Tontz, and Griffin approached. He asserts that White, instead of complying
with his order to exit elsewhere, verbally accosted him and began arguing with him. Plaintiff
alleges that he could smell alcohol on White and, in light of that, White’s refusal to follow
his orders and his other behavior, directed another officer to arrest White for being under the

4

In a response brief plaintiff states that he and Heather White were married on September
28, 2013. As that fact could affect whether the relationship between plaintiff and Ms. White was
entitled to constitutional protection at the time of the alleged actions of defendants, it is unclear why
it was not included in the complaint.
3

influence of alcohol.
Plaintiff alleges that Griffin and Tontz became angry at White’s arrest and threatened
retribution. Griffin allegedly told those present that she was going to use her position as a
state senator and call the chief of police and get plaintiff fired. Plaintiff asserts that between
September 7 and September 9, 2013, White, Tontz and Griffin repeatedly sought to contact
City Manager Breland and Chief of Police Devereaux regarding plaintiff and complained
to them about White’s arrest. He claims they “engaged in conduct which reflect agreement
and concerted action on a plan to intentionally interfere with the relationship (quasimarriage) between Mark Bruning and Heather White.” Doc. #1-2, p. 10. He alleges Breland
and Devereaux agreed to pursue employment actions against plaintiff, knowing they would
cause financial hardship and stress within plaintiff’s family “and thus satisfy the demands
of Defendants Kyle White, Jill Ochs Tontz and/or A.J. Griffin and thereby unduly burden[]
Plaintiff’s relationship and/or effect[] an unwarranted intrusion into that relationship.” Doc.
#1-2, p. 11. To carry out the proposed plan, plaintiff claims Breland and Devereaux
contacted defendant Jim Ahlgren, who “thereafter joined and participated in the conspiracy
by engaging in conduct that he knew or should have known, would interfere with the
relationship between Mark Bruning and Heather White.” Id.
Plaintiff alleges that a series of acts occurred after White’s arrest, all of which were
steps taken in furtherance of the conspiracy. He claims Devereaux conducted an internal
investigation, placed him on administrative leave and instructed him not to enter any Cityowned property without authorization from the City Manager. On October 4, 2013,
4

Devereaux issued a report regarding his investigation, concluding that plaintiff had “acted
out of emotion and overused his authority to detain Kyle White.” Id. at p. 16. Plaintiff
asserts that, based on that finding, Devereaux convened a formal Disciplinary Review Board.
The Board, comprised of defendants Ahlgren, Haddock and Williams, issued a
recommendation for plaintiff’s discharge on October 17, 2013, which Devereaux accepted.
He then sent the matter to Breland, who issued a letter on October 21, 2013, in which he
concurred with the findings and recommendation of the Board and Devereaux and terminated
plaintiff’s employment.
Plaintiff, through his collective bargaining agent, then initiated a grievance of his
discharge on October 25, 2013. After defendant Breland issued a final decision denying it,
FOP Lodge #105 invoked arbitration on behalf of plaintiff. Plaintiff alleges that the
arbitrator issued a final and binding arbitration award sustaining the grievance in part and
directing that plaintiff be retroactively reinstated to his former position. Plaintiff asserts that,
although the City did not appeal the award, it has refused to reinstate him. As will be
discussed subsequently, after plaintiff filed his complaint in this action, the City filed an
action in state court seeking to vacate the arbitration award.
Claims
Plaintiff asserts eight causes of action in his complaint. In his first cause of action,
he seeks to enforce the arbitration award against the City of Guthrie. In his second cause of
action, asserted under 42 U.S.C. § 1983, plaintiff alleges all defendants conspired to interfere
with his right to freedom of intimate association in violation of the First, Fifth and Fourteenth
5

Amendments. In his third cause of action, plaintiff asserts a substantive due process claim
against the City under § 1983. In his fourth cause of action, plaintiff asserts a deprivation
of liberty claim under § 1983 against Breland, Devereaux, Ahlgren and the City, based on
his being barred, since September 12, 2013, by Devereaux from entering City-owned
properties without authorization from the City Manager. In his fifth cause of action, plaintiff
asserts a deprivation of substantive due process claim under §1983 against the City for failing
to reinstate him. In his sixth cause of action, plaintiff asserts a deprivation of procedural due
process claim under § 1983 against Breland, Devereaux, Ahlgren, Haddock, Williams and
the City of Guthrie based on his pretermination proceedings, including the hearing conducted
by the Disciplinary Review Board. In his seventh cause of action, plaintiff asserts a claim
under state law against White, Tontz, Griffin, Haddock and Williams for intentional
interference with his employment or business relationship with the City of Guthrie. In his
eighth cause of action, plaintiff asserts Breland, Devereaux, Ahlgren, Haddock, and Williams
deprived him of his liberty and property interests without due process in violation of his
rights under the Oklahoma Constitution.
Analysis
City’s Partial Motion to Dismiss
The City of Guthrie has filed a partial motion to dismiss, seeking the dismissal of
plaintiff’s first, second, third, and fifth causes of action.
First Cause of Action – Arbitration Award
The City initially argues that plaintiff’s claim seeking to enforce the arbitration award
6

should be dismissed because plaintiff is not the proper party to enforce it. It asserts that,
although plaintiff cites both the Oklahoma Fire and Police Arbitration Act (“FPAA”) and the
Oklahoma Arbitration Act (“OAA”) in the complaint in support of his claim, he does not
identify any provision of the FPAA that allows someone in his position – who was neither
a party to the arbitration proceeding nor to the underlying collective bargaining agreement
– to bring an action to enforce the arbitrator’s decision. Citing 12 Okla. Stat. §1855(D), the
City also contends the OAA expressly provides that it does not apply to collective bargaining
agreements. Even if plaintiff could enforce the decision, the City urges the court to abstain
under Younger v. Harris, 401 U.S. 37 (1971). The City states that, contrary to what plaintiff
pleaded in the complaint, it did file a petition in Logan County District Court (Case No. CJ2014-269), seeking to have the arbitration decision vacated.
Plaintiff responds that he clearly has standing to enforce the award. He asserts that
the FPAA requires Oklahoma police and firefighters to negotiate collective bargaining
agreements with their employers that address the terms and conditions of their employment
and that, as an employee, he is a third party beneficiary of the collective bargaining
agreement, who has a right to enforce its provisions. He further asserts that, although judicial
enforcement of arbitration awards is not expressly authorized by the FPAA, the Oklahoma
courts have recognized a limited right to review arbitration awards.
The court agrees with plaintiff that, at least in this type of situation, he has standing
as a third-party beneficiary of the collective bargaining agreement to seek to enforce the
arbitration award. See City of Houston v. Williams, 353 S.W.3d 128, 148 (Tex. 2011)
7

(“Significantly, collective bargaining agreements are recognized as a type of third-party
beneficiary contract.”); see Restatement (Second) of Contracts § 302 cmt. d, illus. 14 (“A,
a labor union, enters into a collective bargaining agreement with B, an employer, in which
B promises not to discriminate against any employee because of his membership in A. All
B's employees who are members of A are intended beneficiaries of the promise.”); see
generally 15 Okla. Stat. § 29 (“A contract, made expressly for the benefit of a third person,
may be enforced by him at any time before the parties thereto rescind it.”); Fraternal Order
of Police, Lodge 142 v. City of Perkins, 146 P.3d 829, 830 (Okla. Civ. App. 2006) (“The
Police Lodge and Hankins filed an action to enforce the arbitrator’s award in district court.”).
The City’s argument that only the FOP can seek to enforce the award is not
persuasive. The case it cites, Wilcoxson v. Tackett, 41 P.3d 1024, 1028 (Okla.Civ.App.
2002), is distinguishable. There the court was presented with the issue of whether an
individual employee had the right to demand arbitration. As the court explained,“‘the right
to arbitrate under a collective agreement is not ordinarily a right incident to the
employer-employee relationship, but one which is incident to the relationship between
employer and union. Under the collective agreement between the parties, it was the union
which had the right to take grievances to arbitration, not the individual employees.’” Id. at
1027 (quoting Black-Clawson Co., Paper Mach. Div. v. Int'l Ass'n of Machinists Lodge 355,
Dist. 137, 313 F.2d 179, 184 (2d Cir. 1962)). The right to invoke arbitration is different
from suing to enforce an arbitration award. Police officers have routinely joined with the
FOP in the Oklahoma courts in actions seeking judicial enforcement and review of
8

arbitrators’ awards. E.g., City of Owasso v. Fraternal Order of Police, Lodge No. 149, 336
P.3d 1023 (Okla. Civ. App. 2014); City of Perkins, 146 P.3d at 830. In the absence of a
statutory or contractual bar, the court can discern no reason why plaintiff cannot file suit to
enforce the award on his own. The more pertinent question is whether the court should
abstain, pursuant to Younger, from considering the issue because of the pending lawsuit in
Logan County District Court.
Under Younger
[a] federal court must abstain from exercising jurisdiction when: (1) there is
an ongoing state criminal, civil, or administrative proceeding, (2) the state
court provides an adequate forum to hear the claims raised in the federal
complaint, and (3) the state proceedings “involve important state interests,
matters which traditionally look to state law for their resolution or implicate
separately articulated state policies.”5
Brown ex rel. Brown v. Day, 555 F.3d 882, 887 (10th Cir. 2009) (quoting Amanatullah v.
Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1163 (10th Cir.1999)). “[A]bstention ‘is the
exception, not the rule,’ and hence should be ‘rarely ... invoked, because the federal courts
have a virtually unflagging obligation ... to exercise the jurisdiction given them.’” Id. at 888
(quoting Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992)). Nonetheless, if the three
conditions are met, Younger abstention is “‘non-discretionary ... absent extraordinary
circumstances.’” Id. (quoting Ankenbrandt, 187 F.3d at 1163).
As explained by the court in Brown, “Younger originally sought to prevent federal

5

The Tenth Circuit and other courts “have abridged the third prong of the Younger inquiry,
asking only whether the state interest is important.” Brown ex rel. Brown v. Day, 555 F.3d 882, 894
n.10 (10th Cir. 2009).
9

courts, sitting in equity, from enjoining state prosecution of criminal defendants.” Id. at 88990. The Supreme Court has since expanded the Younger abstention doctrine to state civil
enforcement cases and state administrative agency proceedings. The problem with the City’s
position is the lawsuit to which the City asks this court to defer, City of Guthrie v Fraternal
Order of Police Lodge #105, No. CJ-2014-269, does not satisfy the first prong of the
Younger inquiry as it is not a “state criminal, civil [enforcement],6 or administrative
proceeding.” Brown, 555 F.3d at 887.
Younger has occasionally been applied to other types of lawsuits. The Supreme Court
invoked the doctrine in Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) and the Tenth Circuit
noted in Morkel v. Davis, 513 Fed. Appx. 724, 728 (10th Cir. 2013) that it and “other circuits
have consistently applied Younger to child custody cases.” Those cases, however, (and
every case in which Younger has been applied) all involved important state interests.
E.g.,Pennzoil (state civil proceedings implicated State’s interest in enforcing its courts’s
orders and judgments); Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d
1211, 1215 (10th Cir. 2003) (“[T]here is little doubt that eminent domain proceedings
implicate important state interests and are matters which traditionally look to state law for
their resolution.”) (internal quotation marks omitted); Morkel, 513 Fed.Appx. at 729 (“[T]he
resolution of child custody matters has been acknowledged as an important state interest.”).

6

In Sprint Commc'ns, Inc. v. Jacobs, ___ U.S. ___, 134 S.Ct. 584 (2013), the Supreme Court
described civil enforcement proceedings as actions which are “characteristically initiated to
sanction the federal plaintiff, i.e., the party challenging the state action, for some wrongful act.” Id.
at___, 134 S.Ct. at 592.
10

In contrast, the City of Guthrie has failed to demonstrate that the Logan County lawsuit
involves any important state interest. Without citing any authority, it merely asserts that “the
State of Oklahoma has an important interest in seeing to it that the collective bargaining
agreement is properly enforced as to the parties to the agreement and the arbitration
proceeding.” Doc. #16, p. 7. The court would agree that Oklahoma has a general interest
in collective bargaining agreements and arbitration. However, the Logan County action is
essentially a contract dispute which pertains to only one person and one interpretation of a
collective bargaining agreement. The state does not have the “substantial, legitimate
interest” in such a dispute that is required for the court to abstain from exercising its
jurisdiction. See, e.g., New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491
U.S. 350, 365 (1989) (“[T]he regulation of utilities is one of the most important of the
functions traditionally associated with the police power of the States.”) (internal quotation
marks omitted). Thus the third prong of the Younger test has not been met.
And there is another reason why abstention is not warranted. Plaintiff is not a party
to the state litigation. Contrary to the City’s assertion, the FOP cannot pursue any relief to
which plaintiff may be entitled. While it can represent his interests as to the arbitration
matter, it cannot assert § 1983 claims on his behalf.
In Sprint Commc'ns, Inc. v. Jacobs, ___ U.S. ___, 134 S.Ct. 584, 588, (2013), the
Supreme Court recently reiterated that “[c]ircumstances fitting within the Younger doctrine
. . . are ‘exceptional.’” The court “cautioned . . . that federal courts ordinarily should
entertain and resolve on the merits an action within the scope of a jurisdictional grant, and
11

should not refus[e] to decide a case in deference to the States.” Id. (internal quotation marks
omitted). This case does not fall within the type of cases catalogued by the Supreme Court
in Sprint as fitting within the Younger doctrine – “state criminal prosecutions, civil
enforcement proceedings, and civil proceedings involving certain orders that are uniquely
in furtherance of the state courts' ability to perform their judicial functions,” id. (internal
quotation marks omitted), or within the narrow category of private party cases that has been
identified by the Tenth Circuit – child custody cases. Therefore “the general rule governs:
‘[T]he pendency of an action in [a] state court is no bar to proceedings concerning the same
matter in the Federal court having jurisdiction.’” Id. (quoting Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817(1976)). Defendant’s motion to
dismiss plaintiff’s first cause of action on the ground of Younger abstention will be denied.
Second Cause of Action – Conspiracy to interfere with freedom of intimate association
In his second cause of action, plaintiff alleges that all defendants conspired to
intentionally interfere with his freedom of association in violation of his First, Fifth and
Fourteenth Amendment rights.
The City initially argues that plaintiff’s conspiracy claim must be dismissed to the
extent the underlying constitutional right is asserted under the First Amendment, because the
constitutionally protected right to the freedom of intimate association is a liberty interest
protected by the Fifth and Fourteenth, rather than the First Amendment. It then contends that
plaintiff’s alleged relationship with Heather White was not the type of highly personal
relationship afforded constitutional protection. It is unnecessary to address these issues
12

because there is a more fundamental problem with plaintiff’s claim, which the court raises
sua sponte. Plaintiff has failed to sufficiently allege that the City, acting through Devereaux,
Ahlgren and Breland,7 engaged in a conspiracy with defendants Kyle White, Tontz and
Griffin to interfere with plaintiff’s right of intimate association.
“[A] federal conspiracy action brought under [ § 1983] requires at least a combination
of two or more persons acting in concert and an allegation of a meeting of the minds, an
agreement among the defendants, or a general conspiratorial objective.”8 Brooks v. Gaenzle,
614 F.3d 1213, 1227-28 (10th Cir. 2010). “[A] plaintiff must allege specific facts showing
an agreement and concerted action amongst the defendants because [c]onclusory allegations
of conspiracy are insufficient to state a valid § 1983 claim.” Id. at 1228 (internal quotation
marks omitted). A plaintiff must also allege facts that show a constitutional violation. Dixon
v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir.1990) (To recover on a conspiracy claim
under § 1983, “a plaintiff must plead and prove not only a conspiracy, but also an actual
deprivation of rights; pleading and proof of one without the other will be insufficient.”). As

7

While “[s]ection 1983 does not authorize liability under a theory of respondeat superior,”
Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (internal
quotation marks omitted), municipal liability may be imposed on the basis that a City employee was
a final policy maker for the City. Beedle v. Wilson, 422 F.3d 1059, 1068 (10th Cir. 2005)
(“[M]unicipal liability attaches only where the decision maker possesses final authority to establish
municipal policy with respect to the action ordered.”). The court assumes that the city manager and
police chief are final policy makers for the City of Guthrie.
8

The persons also must have acted under color of state law. West v. Atkins, 487 U.S. 42, 46
(1988). “[G]enerally, a public employee acts under color of state law while acting in his official
capacity or while exercising his responsibilities pursuant to state law.” Id. at 50. The non-City
employees who are sued as private citizens, “can be held liable under § 1983 only if [they were]
“willful participant[s] in joint action with the [City] or its agents.” Beedle, 422 F.3d at 1071.
13

applied here, that means plaintiff must allege facts demonstrating that each defendant acted
with the intent to deprive plaintiff of his protected relationship with Heather White.9 Trujillo
v. Bd. of Cnty. Comm'rs of Santa Fe Cnty., 768 F.2d 1186, 1190 (10th Cir. 1985) (“[A]n
allegation of intent to interfere with a particular relationship protected by the freedom of
intimate association is required to state a claim under section 1983.”). See Kerr v. Lyford,
171 F.3d 330, 340 (5th Cir. 1999) (“The elements of civil conspiracy are (1) an actual
violation of a right protected under § 1983 and (2) actions taken in concert by the defendants
with the specific intent to violate the aforementioned right.) (emphasis added), abrogated on
other grounds, Castellano v. Fragozo, 352 F.3d 939 (5th Cir.2003). This plaintiff has not
done. He has pleaded facts from which it might reasonably be inferred that defendants Kyle
White, Jill Ochs and, possibly, Ann Griffin intended to interfere with his relationship with
Ms. White. However, plaintiff has not alleged facts that plausibly show that when the
municipal actors – defendants Devereaux, Breland and Ahlgren – in response to White, Ochs
and Griffin’s complaint’s about White’s arrest, conducted the investigation, convened the
Disciplinary Review Board and eventually terminated plaintiff, they took those actions (and
the others that were alleged) with the specific intent of depriving plaintiff of his protected
relationship with Heather White. Devereaux, Breland and Ahlgren may have agreed to
“pursue employment actions against [plaintiff]” that would have the effect of interfering with
that relationship, but that is not enough. Their conduct must have been directed at that

9

The court assumes for purposes of the motion that plaintiff’s relationship with Heather
White is entitled to constitutional protection.
14

relationship. Trujillo, 768 F.2d at 1190.
As plaintiff has failed to allege the underlying constitutional violation, which must be
pleaded to state a § 1983 conspiracy claim based on interference with the right of intimate
association, Dixon, 898 F.2d at 1449, his second cause of action will be dismissed. Plaintiff
has requested leave to amend both in his response brief and by separate motion. The court
has considerable doubt whether this deficiency can be cured by amendment. The complaint
reflects a determined effort by accomplished counsel to state a factual basis for the necessary
allegations of conspiracy – however forced they may seem as a practical matter – and it
appears unlikely that there is much more to be said. However, as the determinative issue
here was addressed largely sua sponte, leave to amend will be granted.
Third Cause of Action
Plaintiff’s third cause of action is based on a policy which defendants allegedly cited
as a basis for his discharge. The policy allegedly “precluded a police officer from directing
the arrest of a person when said police officer was engaged to marry the ex wife of the
arrestee.” Doc. #1-2, p. 25. Plaintiff alleges defendants asserted this policy as a pretext to
disguise the real reason for his discharge but that
[t]o the extent that this court, and/or the trier of fact, concludes that such a rule
actually existed, Plaintiff would plead, in the alternative, that such a rule is
overly broad, arbitrary and capricious in violation of the substantive due
process clause of the Fifth and Fourteenth Amendments inasmuch as it seeks
to allow governmental action interfering with the fundamental right of freedom
of association.
Doc. #1-2, p. 26.

15

This claim will be dismissed. Assuming the policy exists, plaintiff has not alleged
facts demonstrating that the policy, on its face, violates the substantive due process clause
of the Fifth and Fourteenth Amendments. He has not alleged facts showing a plausible
connection between the policy – a ban on arresting the former spouse of one’s fiancee – and
the right of intimate association. Leave to amend will not be granted, as the court concludes
amendment would be futile.
Fifth Cause of Action – Substantive Due Process refusal to reinstate plaintiff
Plaintiff’s fifth cause of action is based on the City’s alleged refusal to reinstate
plaintiff, which he claims is a violation of his substantive due process rights. The City argues
that this claim is based on its failure to seek relief from the arbitrator’s claim, despite its right
to do so. Because it has now filed a petition to vacate the arbitration decision, the City
asserts the claim should be dismissed. As the court determined previously, when discussing
whether it should abstain pursuant to Younger, there is no reason for it to defer to the state
court proceeding.10 The City’s motion to dismiss this claim will be denied.
In sum, the City’s partial motion to dismiss will be granted in part and denied in part.
The motion will be denied with respect to plaintiff’s first and fifth causes of action.
Plaintiff’s second and third causes of action will be dismissed. Plaintiff will be granted leave
to amend his § 1983 conspiracy claim, if he can do so.
Serenhia Breland, Jim Ahlgren and Damon Devereaux’ Partial Motion to Dismiss

10

The City waited to file its petition in state court until more than a year after the arbitration
decision was issued and more than a year after it had refused to reinstate plaintiff.
16

Defendants Breland, Ahlgren, and Devereaux seek the dismissal of plaintiff’s second
and eighth causes of action. As the court has concluded plaintiff’s §1983 conspiracy claim
fails to state a claim and should be dismissed, it will proceed to consider defendants’
arguments pertaining to his eighth cause of action.
In his eighth cause of action, plaintiff alleges that defendants deprived him of
fundamental liberty and property interests without due process of law in violation of Article
2, §§ 2 and 7 of the Oklahoma Constitution by conspiring to interfere with his intimate
relationship with Heather White, by causing his discharge, by preventing him from entering
onto City public property and barring him from City property, and by depriving him of
procedural due process. Plaintiff asserts that he seeks in this cause of action “to recover
solely from individual officers for conduct which is alleged to have been ‘outside the scope
of employment.’” Doc. #42, p. 28.
Section 2, titled “Inherent rights,” provides that “All persons have the inherent right
to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own
industry.” Section 7 provides that “No person shall be deprived of life, liberty, or property,
without due process of law.” Defendants assert that neither constitutional provision provides
a private cause of action and that the Oklahoma Supreme Court has limited the applicability
of Bosh v. Cherokee Cnty. Bldg. Auth., 305 P.3d 994, 1001 (2013).11

11

In Bosh the Oklahoma Supreme Court recognized a private right of action against a
governmental entity for excessive force based on Art. 2, § 30 of the Oklahoma Constitution,
notwithstanding the limitations of the Oklahoma Governmental Tort Clams Act, 51 Okla. Stat.
§§151 et seq.
17

Plaintiff responds that he is not relying on Bosh, but on another provision of the
Oklahoma Constitution, Article 2, § 6, which requires that the state courts “shall be open to
every person” and “certain remedy afforded for every wrong,” citing Woody v. State, ex rel.
Dep't of Corr., 833 P.2d 257 (1992).12 He asserts that “the Oklahoma statutes are clear that
a violation of any right entitles Plaintiff to recover damages” and that “[t]his cause of action
is one sounding in tort.” Doc. #42, p. 29 & n.5.
While plaintiff denies he is asserting a Bosh claim, he has not identified any other
plausible basis for the multiple claims he is attempting to allege under the state constitution.
The Oklahoma courts have wrestled with the question of whether a private right of action
should be recognized for particular claims. E.g., GJA v. Oklahoma Dep't of Human Servs.,
347 P.3d 310 (Okla.Civ.App. 2015). That exercise is plainly inconsistent with plaintiff’s
suggestion that Art. 2, § 6 is a basis for tort recovery as to all constitution-based claims.
There must be some recognized basis for recognizing a private right of action and, on the
current submissions, only Bosh is potentially applicable.
The Oklahoma Supreme Court has now made it explicitly clear that Bosh is not some
wide-ranging authorization of private rights of action for all claims arguably arising under
the Oklahoma Constitution. Rather, Bosh’s rationale is limited to those circumstances where
a plaintiff has “no other avenue” for recovering for his or her claimed constitutional injuries.

12

Plaintiff’s reliance on Woody v. State, 833 P.2d 257 (Okla.1992) is misplaced, as in it the
Oklahoma Supreme Court dealt with the application of the prisoner mailbox rule to pro se
prisoners’ appellate filings due to concerns of access to the courts.
18

Perry v. City of Norman, 341 P.2d 689, 692-93 (Okla. 2014).13 Plaintiff has not made any
such showing here, even assuming he has made out a constitutional violation. Federal courts
are, in general, reluctant to expand state law in the absence of clear guidance from the state’s
highest court. Schrock v. Wyeth Inc., 727 F.3d 1273, 1284 (10th Cir. 2013). There is none
suggesting the Oklahoma courts would recognize a private right of action in these
circumstances.
Plaintiffs claims based on claimed violations of the Oklahoma Constitution (eighth
cause of action) will be dismissed. Leave to amend is not granted as amendment would be
futile.
Gary Haddock and Jonathan Williams’ Motion to Dismiss
Defendants Haddock and Williams seek dismissal of all four claims plaintiff has
asserted against them in his second, sixth, seventh and eighth causes of action.
The court has concluded plaintiff’s §1983 conspiracy claim fails to state a claim and
should be dismissed, and the deficiencies that resulted in the dismissal of plaintiff’s eighth
cause of action as alleged against defendants Breland, Ahlgren, and Devreax similarly
warrant its dismissal as to defendants Haddock and Williams. The court will therefore
13

The Oklahoma Court of Civil Appeals has also recently addressed the scope of Bosh,
suggesting that its rationale extends beyond just excess force cases and that its reach is somehow
determined by a “gatekeeping” function engaged in by the trial court. GJA v. Okla. Dep’t of
Human Servs., 347 P.3d 310 (Okla.Civ.App. 2015). Although decided after Perry, the GJA opinion
does not mention Perry, does not recognize Perry’s limitation of the Bosh rationale, and appears
to ultimately base its conclusion on the presence or absence of a constitutional violation, rather than
on the issue of whether Bosh affords a basis for a remedy for any substantive violation otherwise
established. In any event, GJA is not persuasive authority for concluding that Bosh would authorize
the Oklahoma constitutional claims which plaintiff asserts here.
19

proceed to consider the sufficiency of plaintiff’s sixth and seventh causes of actions against
defendants Haddock and Williams.
Plaintiff alleges in his sixth cause of action that defendants Haddock and Williams
deprived him of property without due process when they, as members of the Disciplinary
Review Board during the pretermination proceedings, gave as a reason for his termination
his “unfit for employment” personality and temperament, without giving him prior notice of
that charge. Plaintiff alleges that the defendants ‘were biased to the extent that the doctrine
of ‘cats paw’ and rubber stamped’ imputes the intent of Breland, Devereaux and Ahlgren to
them.” Doc. #1-2, p. 30.
Defendants Haddock and Williams argue that plaintiff has not alleged that they
personally acted with the intent to deprive him of his constitutional rights. They also contend
that his attempt to hold them liable under a cat’s paw or rubber stamping theory fails because
the principle applies when the decision maker carries out the discriminatory animus of a
subordinate. Plaintiff responds that “[t]o the extent that the Disciplinary Review Board was
making a decision on discharge they were effectively superior to Devereaux and Ahlgren in
terms of recommending discipline.” Doc. #43, p. 28. He also asserts that because of “the
control Devereaux and Ahlgren had over” Haddock and Williams, their intent could be
imputed to Haddock and Williams. Id. at p. 29.
The cat’s paw theory is not applicable in these circumstances. As recently explained
by the Tenth Circuit in Llamas v. QC Fin. Servs., Inc., 2015 WL 4175020, at *7 (10th Cir.
July 13, 2015), “[c]at's paw” liability is appropriate when “a biased subordinate, who lacks
20

decision making power, uses the formal decision maker as a dupe in a deliberate scheme to
trigger a discriminatory employment action.” That is the reverse of what plaintiff has alleged
occurred here. Plaintiff also cites no authority for the proposition that intent can be imputed
on the basis that one individual is under another’s control. Plaintiff’s sixth cause of action
will be dismissed as to Haddock and Williams.
In his seventh cause of action plaintiff alleges he had “ a contract, employment and/or
business relation with the City of Guthrie,” that defendants Haddock and Williams knew or
should have known of its existence and that they “interfered with that relation and/or induced
the Third party to terminate Plaintiff, based upon false and malicious charges and
allegations.” Doc. 1-2, pp. 31-32. Defendants assert that to prevail under Oklahoma law on
a claim for tortious interference with a contractual or business relationship a plaintiff must
prove: “ (1) the interference was with an existing contractual or business right; (2) such
interference was malicious and wrongful; (3) the interference was neither justified, privileged
nor excusable; and (4) the interference proximately caused damage.” Wilspec Technologies,
Inc. v. DunAn Holding Grp., Co., 204 P.3d 69, 74 (Okla. 2009). They contend that plaintiff
has, throughout the complaint, alleged they were liable as the result of the wrongful
motivations of others and he has not pleaded that they acted maliciously or wrongfully. They
assert it is inconsistent for him to allege in some causes of action that they should be held
liable under a “cat’s paw” theory, but then claim in another that they personally acted
maliciously or wrongfully.
Plaintiff responds that he has adequately pleaded a malicious interference with
21

employment claim. He contends “these Defendants interjected into the proceedings a false,
and unsupported ex parte basis for discharge” – the “unsupported claim that Plaintiff’s
personality and/or temper rendered him unfit for employment.” Doc. #43, p. 29 (quoting
Complaint, Doc. #1-2 ¶36y).
The federal pleading rules permit a plaintiff to plead alternate and inconsistent claims.
However, a plaintiff must plead some facts to support them. Plaintiff has not alleged facts
in his seventh cause of action from which it can reasonably be inferred that Haddock and
Williams acted with the required wrongful intent to interfere with plaintiff’s employment
relationship with the City. The claim will be dismissed as to these two defendants.
The motion to dismiss filed by defendants Haddock and Williams will be granted.
Plaintiff’s second, sixth, seventh and eighth causes of action will be dismissed as to
defendants Haddock and Williams.
Ann Griffin’s Motion to Dismiss
Defendant Griffin seeks the dismissal of the two claims plaintiff has asserted against
her in his second and seventh causes of action. She initially argues that the § 1983
conspiracy claim should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject
matter jurisdiction because plaintiff has not alleged she was acting under color of law. West.
v. Atkins, 487 U.S. 42, 46 (1988) (acting under color of law is “a jurisdictional requisite for
a § 1983 action”). Defendant Griffin notes that, although plaintiff refers to her as a state
senator in the complaint, he sued her in her individual capacity and all of the allegations that

22

pertain to her relate to actions she took as a private citizen.14 Ms. Griffin then contends that,
to the extent plaintiff attempts to subject her to liability under § 1983 on the ground that she,
along with defendants White and Tontz, conspired with City officials, the allegations are too
conclusory to state a claim.15 The court agrees that plaintiff’s allegations of conspiracy are
deficiently pleaded, for the reasons stated earlier when discussing the claim in conjunction
with the City’s motion to dismiss.16 Plaintiff’s § 1983 conspiracy claim will be dismissed
as to defendant Griffin for failure to state a claim.17 That leaves plaintiff’s claim against Ms.
Griffin for intentional interference with a business or profession.
14

Plaintiff disputes that he has not alleged Ms. Griffin acted under color of law, citing
paragraph 12 of the complaint.” Doc. #1-2, ¶12. While the § 1983 conspiracy claim is being
dismissed on another ground, the court agrees with Ms. Griffin that plaintiff failed to plead that her
actions were taken “under color of state law.” See Beedle, 422 F.3d at 1074 (“[I]t is well settled
that an otherwise private tort is not committed under color of law simply because the tortfeasor is
an employee of the state. [I]t is the plaintiff's burden to plead, and ultimately establish, the
existence of a real nexus between the defendant's conduct and the defendant's badge of state
authority in order to demonstrate action was taken under color of state law.”) (internal quotation
marks omitted).
15

Ms. Griffin, like several of the other defendants, also challenges plaintiff’s conspiracy
claim on the basis that his relationship with Heather White, at the time of the asserted interference,
was not the type of relationship entitled to constitutional protection. As the court stated previously,
because the claim is being dismissed on another ground, it is unnecessary to address that issue or
to determine the constitutional basis for the right of intimate association .
16

In his response to Ms. Griffin’s motion, plaintiff does not address her argument that his
conspiracy allegations are inadequate, other than to state that the “Petition in this case clearly
reflects a conspiracy, as well as joint action, where there is substantial cooperation and agreement
as to objectives between Defendants Griffin, White and Tontz and state actors Breland, Ahlgren and
Devereaux.” Id. at p. 26.
17

Defendant Griffin also moved to dismiss plaintiff’s § 1983 conspiracy claim on the basis
of qualified immunity. Defendants Breland, Ahlgren and Devereaux asserted qualified immunity
as a defense to the claim if the court determined plaintiff had a protected constitutional right in a
non-marital relationship. As the court concluded the claim was inadequately pleaded, it did not
address the issue of qualified immunity.
23

Defendant Griffin contends the claim is barred by the Oklahoma Citizens Participation
Act (“OCPA”), 12 Okla. Stat. §§ 1430-1440. Plaintiff responds that “the OCPA merely
establishes procedures for determining a claim of free speech protection.” Doc. #44, p. 31.
He contends it does not supplant the Federal Rules of Civil Procedure. The court agrees.
The OCPA provides a special procedure governing a motion to dismiss filed in a legal
action that is “based on, relates to or is in response to a party's exercise of the right of free
speech, right to petition or right of association.” 12 Okla. Stat. § 1432. An almost identical
Act, the Texas Citizens’ Participation Act, was described by the Texas Court of Appeals as
being intended to “‘protect[] citizens from retaliatory lawsuits that seek to intimidate or
silence them on matters of public concern’ by providing ‘a special procedure for the
dismissal of such suits.’” Ruder v. Jordan, 2015 WL 4397636, at *2 (Tex. App. July 20,
2015) (emphasis added) (quoting In re Lipsky, 460 S.W.3d 579, 84 (Tex. Apr. 24, 2015)).
It allows for prompt disposition of a motion to dismiss, but does not otherwise provide any
substantive rights. As the act is procedural in nature, it is inapplicable in federal court and
does not provide a basis for dismissing plaintiff’s tort claim. See generally Boyd Rosene &
Associates, Inc. v. Kansas Mun. Gas Agency, 174 F.3d 1115, 1118 (10th Cir. 1999). Further,
if defendant Griffin was correct that the statute provided substantive rights, then it still would
not apply here because, as she notes in her reply brief, the OCPA became effective on
November 1, 2014,which is after the events underlying plaintiff’s claims occurred.
Defendant Griffin also contends that plaintiff’s seventh cause of action should be
dismissed because he failed both to allege facts that would “amount to impropriety or
24

unfairness” or to specify which defendants acted unfairly or improperly. Doc. #29, p. 29.
Plaintiff’s intentional interference claim against defendant Griffin is based on her
involvement in a conspiracy with City employees who allegedly wrongfully terminated
plaintiff. As plaintiff’s conspiracy claim has been dismissed, this claim also fails.
The motion to dismiss filed by defendant Griffin will be granted and plaintiff’s second
and seventh causes of action will be dismissed as to defendant Griffin.
Jill Ochs Tontz’s and Kyle White’s Motions to Dismiss
Defendants Tontz and White also seek the dismissal of plaintiff’s second and seventh
causes of action. They have filed almost identical motions to dismiss and make essentially
the same arguments as those asserted by defendant Griffin. Their motions will be granted
for the same reasons the court granted Ms. Griffin’s motion to dismiss. Plaintiff’s second
and seventh causes of action will be dismissed as to defendants Tontz and White.
Conclusion
The partial motion to dismiss [Doc. #16] filed by the City of Guthrie is GRANTED
in PART and DENIED in PART. It is DENIED as to the first and fifth causes of action.
The partial motion to dismiss [Doc. #17] filed by defendants Breland, Ahlgren, and
Devereaux is GRANTED. The motions to dismiss filed by defendants Haddock and
Williams [Doc. #18], Griffin [Doc. #29], Tontz [Doc. #31], and White [Doc. #30] are
GRANTED.

Plaintiff’s second, third, seventh, and

eighth causes of action are

DISMISSED as to all defendants. The sixth cause of action is DISMISSED as to defendants
Haddock and Williams.
25

Plaintiff has filed a motion to amend his complaint [Doc. #55], which the court
GRANTS as to all the claims that are dismissed except for the third and eighth causes of
action. Leave to amend those claims is DENIED as amendment would be futile.
If plaintiff decides to amend any of the dismissed claims, the amended complaint must
be filed by September 1, 2015.
IT IS SO ORDERED.
Dated this 18th day of August, 2015.

26