Mothershed v. Oklahoma City City of et al

Filing 18

ORDER granting the City's partial motion to dismiss 12 ...see order for specifics. Signed by Honorable Joe Heaton on 6/6/2017. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ELIJAH MALACHI X. MOTHERSHED BEY, )
)
Plaintiff,
)
vs.
)
)
)
CITY OF OKLAHOMA CITY, a
)
municipality, and JAMES WATSON,
)
police officer,
)
)
Defendants.
)

NO. CIV-17-340-HE

ORDER
Plaintiff Elijah Malachi X Mothershed Bey filed this § 1983 action against James
Watson, an Oklahoma City police officer, and the City of Oklahoma City (“City”). He
asserts he was seized without probable cause and held for twenty-nine days in the
Oklahoma County Detention Center. Based on those underlying facts, plaintiff alleges
violations of his Fourth and Fourteenth Amendment rights, and also asserts claims under
state law.
The City has filed a partial motion to dismiss. 1 When considering whether a
plaintiff’s claim should be dismissed under Rule 12(b)(6), 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. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014).

1

In his response plaintiff asks the court to grant summary judgment in his favor. The court
declines to convert the motion to one for summary judgment, which is premature at this stage of
the proceedings. Plaintiff also has not complied with the requirements of the federal and local
rules applicable to such a motion. See Fed.R.Civ.P. 56; LCvR56.1.

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).
Because plaintiff is proceeding pro se, the court liberally construes his pleadings. Wilson
v. City of Oklahoma City, 447 Fed. Appx. 913, 914 (10th Cir. 2012). Considering the
complaint under this standard, the court concludes defendant’s motion should be granted.
In the complaint, plaintiff alleges that, on June 7, 2015, his former girlfriend filed a
false report of physical abuse with the Oklahoma City Police Department. Plaintiff further
alleges that Officer Watson, by omitting pertinent facts from his report to the district
attorney’s office, submitted a false report which resulted in plaintiff being charged with
misdemeanor assault and battery. According to the complaint, plaintiff was arrested for
domestic abuse on September 18, 2015, was “unreasonably seized and detained,” was
incarcerated for ten days and then eventually released on bond. The complaint further
alleges that, on December 2, 2015, plaintiff was incarcerated again when a state judge
(Judge Hall) found him in indirect contempt of court. Plaintiff alleges the contempt
determination was based on his filing a motion to represent himself and that he was
incarcerated an additional fourteen days as a result. Doc. #1, p. 4, ¶15. 2 According to the
complaint, plaintiff was eventually acquitted by a jury of the domestic abuse charge on
January 28, 2016.

2

Page references to briefs are to the CM/ECF document and page number.

2

Plaintiff’s first cause of action appears to be asserted against the City and against
defendant Watson in both his individual and official capacities. It is a § 1983 claim based
on alleged violations of plaintiff’s Fourth and Fourteenth Amendment rights. His second
cause of action asserts claims against the City for false arrest, wrongful imprisonment,
malicious prosecution and intentional infliction of emotional distress. These are asserted
pursuant to the Governmental Tort Claims Act (“GTCA”), 51 Okla. Stat. §§ 151-172. In
his third cause of action, plaintiff asserts a § 1983 claim against the City based on its alleged
failure to adequately discipline or train its police officers.
The City seeks to dismiss the “official capacity” claim against defendant Watson on
the basis such a claim is actually against the city, that Watson is not a policymaker for the
City and because the City is already a defendant. “Suing individual defendants in their
official capacities under § 1983 . . . is essentially another way of pleading an action against
the county or municipality they represent.” Porro v. Barnes, 624 F.3d 1322, 1328 (10th
Cir. 2010). As the City is already a named defendant, an official capacity claim against
Officer Watson has no impact and is unnecessary. The purported claim against defendant
Watson in his official capacity will therefore be dismissed.
The City also seeks to dismiss any claim based on the Fourteenth Amendment. 3 It
argues that while the complaint references both the Fourth and Fourteenth Amendments,
the substance of plaintiff’s § 1983 claim --- the assertion that there was no probable cause

3

The City can challenge plaintiff’s Fourteenth Amendment claim, which was directed to
defendant Watson, because, “[w]hen there is no underlying constitutional violation by a county
officer, there cannot be an action for failing to train or supervise the officer.” Apodaca v. Rio
Arriba Cty. Sheriff's Dep't, 905 F.2d 1445, 1447–48 (10th Cir. 1990).

3

for his arrest --- is actually based on the Fourth Amendment. 4

Plaintiff responds that he

“was denied due process of law because James Watson is bias,” and that his Fourth and
Fourteenth Amendment rights were violated as a result. Doc. #14, pp. 2, 5. However, as
the City notes, the constitutional claim against defendant Watson is based on the assertion
that plaintiff was arrested without probable cause. Whether the arrest was with or without
a warrant, the Fourth Amendment “establishes ‘the standards and procedures’ governing
pretrial detention.” Manuel v. City of Joliet, 137 S.Ct. 911, 914 (2017) (quoting Gerstein
v. Pugh, 420 U.S. 103, 111 (1975)). “[E]ven beyond the start of legal process,” the “Fourth
Amendment governs a claim for unlawful pretrial detention.” Id. at 920. As the complaint
does not allege facts suggesting a due process violation by defendant Watson, plaintiff’s
claim based on the Fourteenth Amendment will be dismissed. 5
Finally, the City seeks dismissal of the state law claims for false arrest, false
imprisonment, malicious prosecution and intentional infliction of emotional distress on the
basis they are time-barred by the GTCA. The City argues that, notwithstanding the
complaint’s allegation of a “timely claim to the City of Oklahoma City,” this case was not
filed within the time required by the GTCA and the state law claims are therefore barred.
The City contends, and plaintiff does not dispute, that plaintiff’s notice of claim was filed

4

In its Proposition No. IV, the city refers to plaintiff’s allegations at ¶23, when it seems to
be referring to ¶13, and to the Fourteenth Amendment, when it seems to be referring to the Fourth
Amendment.
5

The only allegations which would arguably support a due process claim are those which
assert the state judge found the defendant in contempt for trying to represent himself. However,
the judge is not a defendant nor is he a City employee for whose conduct the City might be liable.

4

with the City on April 29, 2016. 6

That means, the City argues, that plaintiff’s claim was

deemed denied on July 28, 2016, and he then had to file suit on the claim within 180 days
thereafter. It asserts the 180 days would have run on January 24, 2017, but this case was
not filed under March 27, 2017.
The GTCA is the exclusive means by which a plaintiff can recover from a
governmental entity for tort violations based on state law. 51 Okla. Stat. § 152.1. The Act
requires that a claimant provide the political subdivision with notice of the claim within
one year after the tort occurs, and that any lawsuit be filed within 180 days if the claim is
denied. If the subdivision fails to act on the claim within 90 days, the claim is deemed
denied. See 52 Okla. Stat. §§ 156, 157. Compliance with these requirements, including
the notice requirement, is jurisdictional as a matter of substantive Oklahoma law. See Hall
v. GEO Group, Inc., 324 P.3d 399, 400-01 (Okla. 2014).
Plaintiff does not dispute that his GTCA claim was untimely, but argues he “should
be allowed tolling due to trailing paperwork.” Doc. #14, p. 11. He cites no authority for
such an exception from the GTCA’s limitations period and “trailing paperwork” is not a
recognized statutory basis for tolling. See e.g., 51 Okla. Stat. § 156(E) (90 day tolling
period applies to time period for giving written notice of claim to person incapacitated due

6

Because plaintiff has not disputed that his Notice was untimely, the court has not
considered Exhibit 1 attached to the City’s brief, although in these circumstances it would be
appropriate to do so. Generally a court must exclude materials outside the complaint when
reviewing a motion to dismiss. It may, though, consider documents referenced in the complaint
that are central to plaintiff’s claim if the parties do not dispute their authenticity. Granite
Southlands Town Ctr., LLC v. Provost, 445 Fed. Appx. 72, 74 (10th Cir. 2011) (citing Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002)).

5

to injury). As no basis for tolling has been shown, the result is that this case was not
commenced within the time limits prescribed by the GTCA. Plaintiff’s state law claims
against the City are therefore untimely and must be dismissed. 7
One final matter needs to be addressed. In the complaint plaintiff states that “[t]his
action for damages is authorized by laws of the State of Oklahoma, in particular Article 2
Section 30 of the Oklahoma Constitution,” Doc. #1, p. 2, ¶5. This is the provision of the
Oklahoma Constitution pertaining to unreasonable searches and seizures. In his response
to the City’s motion to dismiss, plaintiff also refers to art. 2, § 7 of the Oklahoma
Constitution, which pertains to due process. In Bosh v. Cherokee Cnty. Bldg. Auth., 305
P.3d 994, 1001 (2013) 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 Governmental Tort Claims Act. This
court has concluded that Bosh should be narrowly interpreted and applied only to excessive
force claims. See Hedger. v. Kramer, 2013 WL 5873348, at *3 (W.D.Okla. Oct. 30, 2013),
appeal filed (10th Cir. Sept. 14, 2016). Bosh does not serve to create a private right of
action for all claims arguably arising under the Oklahoma Constitution. Therefore, lacking
a basis for a private right of action separate and apart from the GTCA, the court sua sponte
dismisses plaintiff’s claim based on Okla. Const. art. 2, § 30. 8

7

Because the state law claims against the City are barred as non-timely, it is unnecessary
to address the City’s further argument that certain of them would be barred as outside the scope
of Officer Watson’s employment
8
In his response to the City’s motion to dismiss, plaintiff also refers to Okla. Const. art. 2,
§ 7, which pertains to due process. However, the complaint does not assert a claim under that

6

Accordingly, the City’s partial motion to dismiss [Doc. #12] is granted. Plaintiff’s
claims against defendant Watson in his official capacity and his claims based on the
Fourteenth Amendment and Okla. Const. art. 2, § 30 are dismissed. Plaintiff’s state law
claims asserted against the City under the GTCA also are dismissed. Remaining for
resolution are plaintiff’s § 1983 claim against the City based on the Fourth Amendment, as
well as the § 1983 claim against defendant Watson in his individual capacity and any state
law claims asserted against him.
IT IS SO ORDERED.
Dated this 6th day of June, 2017.

section of the Oklahoma Constitution and, if it had, it would similarly be subject to dismissal based
on the limited scope of Bosh and its rationale.

7