Salazar v. Oklahoma City Police Department et al

Filing 43

ORDER granting in part and denying in part 27 defendants' Motion to Dismiss Portions of Plaintiff's First Amended Complaint (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 6/12/2017. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BERNABE SALAZAR, JR., as Parent and )
Next Friend of MARK ANGEL SALAZAR, )
Deceased,
)
)
Plaintiff,
)
)
vs.
)
)
THE CITY OF OKLAHOMA CITY,
)
ex rel. OKLAHOMA CITY POLICE
)
DEPARTMENT and RYAN STARK,
)
)
Defendants.
)

Case No. CIV-16-458-M

ORDER
Before the Court is defendants’ Motion to Dismiss Portions of Plaintiff’s First Amended
Complaint, filed September 7, 2016. On September 28, 2016, plaintiff filed his response. On
October 5, 2016, defendant City of Oklahoma City (“City”) filed its reply, and on October 6, 2016,
defendant Ryan Stark filed a joinder to defendant City’s reply. On March 31, 2017, defendant
City filed a Notice to the Court.
I.

Introduction1
On August 24, 2014, Mark Salazar (“Salazar”) was involved in a police pursuit. At some

point during the pursuit, Stark released his law enforcement canine, and the canine attacked
Salazar. In response, Salazar began to protect himself from the attack. Stark then began to shoot
Salazar who was lying on the ground. Specifically, Stark fired six shots in the body of Salazar,
including one in his upper left arm, four shots in his back, and one in his left thigh, which ultimately
killed Salazar.
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The facts contained in this Introduction are based upon the facts alleged in plaintiff’s First
Amended Complaint.

On May 4, 2016, plaintiff Bernabe Salazar, Jr., the father of Salazar, filed the instant action.
On August 24, 2016, plaintiff filed a First Amended Complaint alleging the following causes of
action against defendants: (1) excessive force, (2) 42 U.S.C. § 1983, (3) failure to train, supervise
and control, (4) negligence, and (5) infliction of emotional distress. Defendants now move to
dismiss portions of plaintiff’s First Amended Complaint.2
II.

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

Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted, 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

2 In their motion to dismiss, defendants assert that plaintiff has no standing to bring a § 1983
survival claim. In defendant City’s Notice to the Court, defendant City advises the Court that an
Order for Letters of Special Administration and Letters of Special Administration have been issued
in the case styled In the Matter of the Estate of Bernabe Salazar Jr. and that Proposition 1(a) of
the motion to dismiss is now moot.

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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). Finally, “[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).
III.

Discussion
A.

Municipal liability

In order to establish municipal liability, a plaintiff must identify a government’s policy or
custom that caused the injury and that was enacted or maintained with deliberate indifference to
an almost inevitable constitutional injury. See Schneider v. City of Grand Junction Police Dep’t,
717 F.3d 760, 769 (10th Cir. 2013). Having carefully reviewed plaintiff’s First Amended
Complaint, the Court finds that plaintiff has failed to state a § 1983 claim against defendant City.
Specifically, the Court finds that plaintiff has not set forth sufficient facts showing the City had a
policy or custom that caused plaintiff’s injury. In his First Amended Complaint, plaintiff does not
allege any specific policy or custom or allege how said policy or custom caused plaintiff’s injury.
Plaintiff’s First Amended Complaint simply sets forth conclusory allegations. Accordingly, the
Court finds that plaintiff’s § 1983 claim against defendant City should be dismissed.
B.

Failure to train, supervise, and control

In his First Amended Complaint, plaintiff asserts a failure to train, supervise, and control
cause of action against defendant City. Having reviewed plaintiff’s First Amended Complaint, the
Court finds that plaintiff has failed to state a claim for failure to train, supervise, and control against

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defendant City. In his complaint, plaintiff sets forth absolutely no factual allegations to support
this cause of action. Specifically, plaintiff does not allege how defendant City failed to train,
supervise, and control defendant Stark or how this failure to train, supervise, and control caused
the death of Mark Salazar. Plaintiff simply sets forth the following conclusory allegations:
38.
39.

At all times relevant hereto, Ryan Stark was employed as a
law enforcement officer with the Oklahoma City Police
Department.
That Defendant, the City of Oklahoma ex rel. Oklahoma
City Police Department failed to train, supervise and control
its employees, agents and servants which resulted in Mark
Salazar’s murder.

First Amended Complaint at ¶¶ 38-39. Accordingly, the Court finds that plaintiff’s failure to train,
supervise, and control cause of action against defendant City should be dismissed.
C.

Infliction of emotional distress

Defendant City asserts that plaintiff’s intentional infliction of emotional distress cause of
action against defendant City should be dismissed because such an action would negate the “good
faith” requirement in the definition of scope of employment. In his response, plaintiff contends
that the intentional infliction of emotional distress cause of action is being brought against
defendant Stark and that plaintiff is asserting an alternative cause of action for negligent infliction
of emotional distress against defendant City. Having reviewed the parties’ submissions, as well
as the First Amended Complaint, the Court finds that any cause of action against defendant City
for intentional infliction of emotional distress should be dismissed but that any cause of action
against defendant City for negligent infliction of emotional distress should not be dismissed.

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IV.

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

IN PART defendants’ Motion to Dismiss Portions of Plaintiff’s First Amended Complaint [docket
no. 27] as follows:
(A)

The Court GRANTS the motion to dismiss as to plaintiff’s § 1983 cause of action
against defendant City, plaintiff’s failure to train, supervise, and control cause of
action against defendant City, and plaintiff’s intentional infliction of emotional
distress cause of action against defendant City and DISMISSES said causes of
action, and

(B)

The Court DENIES the motion to dismiss as to plaintiff’s negligent infliction of
emotional distress cause of action against defendant City.

IT IS SO ORDERED this 12th day of June, 2017.

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