United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. PAYNE, UNITED STATES DISTRICT JUDGE
the Court is Defendant Sheriff Vic
Regalado's partial Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) (Doc. No.
For the reasons explained below, the Motion to Dismiss is
to the Complaint, on September 8, 2010, Plaintiff Randall
Marsh was stopped in his vehicle on the side of Highway I-44
in Tulsa, Oklahoma. (Doc. No. 2, ¶ 10). Defendant Deputy
David Long with the Tulsa County Sheriff's Department
approached Plaintiff's stopped vehicle pursuant to a
burglary investigation and contacted Plaintiff. (Id.
¶ 11). When Plaintiff broke off contact and began to
drive away, Deputy Long drew his firearm and shot into
Plaintiff's vehicle, striking him in the shoulder.
(Id. ¶ 12). Plaintiff alleges this use of
deadly force was unjustified and violated his rights.
further alleges Deputy Long falsely reported that Plaintiff
attempted to strike him with his vehicle. (Id.
¶ 14). As a result of Deputy Long's report,
Plaintiff was arrested and charged with assault and battery
with a dangerous weapon, although the charge was later
dismissed. (Id.). Plaintiff alleges there was an
independent eye-witness to the shooting incident who
contradicted Deputy Long's description of events.
(Id. ¶ 15). Specifically, the eye-witness
reported that Deputy Long was clearly in a safe position away
from Plaintiff's vehicle when he shot at it.
(Id.). Defendant Sheriff Vic Regalado held an
inquiry into the use of deadly force by Deputy Long, but he
ignored the eye-witness's version of events and found the
use of force to be justified. (Id.).
asserts two causes of action against Sheriff Regalado in his
official capacity: (1) violation of his federal civil rights
pursuant to 42 U.S.C. § 1983 (First Cause of Action),
and (2) respondeat superior liability under Article
2 § 30 of the Oklahoma Constitution (Second Cause of
Action). Sheriff Regalado now moves to dismiss the §
1983 claim against him pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. No. 5).
considering a Rule 12(b)(6) motion, the court must accept all
well-pleaded allegations of the complaint as true, and must
construe them in the light most favorable to the plaintiff.
See Anderson v. Merrill Lynch Pierce Fenner & Smith,
Inc., 521 F.3d 1278, 1284 (10th Cir. 2008). To withstand
a motion to dismiss, a complaint must contain enough
allegations of fact “to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The Tenth Circuit has
stated that “plausibility” in this context refers
“to the scope of the allegations in the complaint: if
they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Twombly, 550
U.S. at 569). This “facial plausibility” standard
explicitly replaced the historic “no set of
facts” standard. Twombly, 550 U.S. at 563. The
plaintiff bears the burden to frame “a complaint with
enough factual matter (taken as true) to suggest” that
he or she is entitled to relief. Twombly, 550 U.S.
at 556. “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.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555, 557).
Regalado argues the § 1983 claim should be dismissed,
because Plaintiff's Complaint makes only vague,
conclusory, and boilerplate allegations against him and fails
to specify which federal constitutional violation he asserts
Sheriff Regalado violated. (See Doc. No. 2,
¶¶ 17-19). Specifically, Sheriff Regalado argues
the “official capacity” claim under § 1983
fails, because Plaintiff fails to identify any official
policy or custom that caused Plaintiff's constitutional
deprivation. See Bd. Of Cnty. Com'rs of Bryan Cnty.,
Okla. v. Brown, 520 U.S. 397, 403 (1997). Plaintiff
argues the allegations in the Complaint are sufficient to
allege the Sheriff's office developed a municipal policy
or custom that was the moving force behind the alleged Fourth
state an “official capacity” claim under 42
U.S.C. § 1983, a plaintiff must prove: “(1) that a
municipal employee committed a constitutional violation, and
(2) that a municipal policy or custom was the moving force
behind the constitutional deprivation.” Myers v.
Okla. County Bd. of County Com'rs, 151 F.3d 1313,
1316 (10th Cir. 1998) (citing Monell v. Dep't of
Social Servs., 436 U.S. 658, 694 (1978)).
“‘[A] plaintiff must show that the municipal
action was taken with the requisite degree of culpability and
must demonstrate a direct causal link between the
municipal action and the deprivation of federal
rights.'” Dodds v. Richardson, 614 F.3d
1185, 1202 (10th Cir. 2010) (quoting Brown, 520 U.S.
at 404). A policy must be a “policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by a municipality's officers.”
Lankford v. City of Hobart, 73 F.3d 283, 286 (10th
Cir. 1996) (quoting Starrett v. Wadley, 876 F.2d
808, 818 (10th Cir.1989)) (quotation and alteration marks
omitted). A custom must be a practice that is
“persistent and widespread.” Id.
(quoting Starrett, 876 F.2d at 818). Generally,
“allegations of an isolated incident are not sufficient
to show the existence of a custom or policy.”
Fraire v. City of Arlington, 957 F.2d 1268, 1278
(5th Cir.1992). A plaintiff who has alleged a failure to act
must demonstrate the municipality's inaction resulted
from “deliberate indifference” to the rights of
the plaintiff. City of Canton v. Harris, 489 U.S.
378, 389 (1989). “Deliberate indifference” is a
stringent standard which demands proof that a municipal actor
“disregarded a known or obvious consequence of his
actions, ” and “[a] showing of simple or even
heightened negligence will not suffice.” Bryan
Cnty., 520 U.S. at 407 410.
the Court concludes the Complaint fails to allege sufficient
facts upon which a fact finder could plausibly determine that
Sheriff Regalado promulgated an official policy or custom
that violated the Constitution. Although, as Plaintiff points
out, the Complaint does specifically allege violation of
Plaintiff's Fourth Amendment rights to be free from
unreasonable search and seizure and unjustified use of deadly
force (Doc. No. 2, ¶ 3), Plaintiff fails to tie this
allegation to any official policy or custom promulgated by
Sheriff Regalado. Instead, Plaintiff falls back on
unsupported boilerplate allegations, which are plainly
inadequate under the Twombly/Iqbal pleading
standard. (See Doc. No. 2, ¶ 18.v-ix).
(alleging that the Tulsa County Sheriff's Office
established a policy, practice, and custom of
“omit[ting] and/or fail[ing] to provide training and
supervision regarding the lawful use of deadly force and
probable cause to arrest, ” and of “failing to
discipline officers who violate the Constitutional rights of
the very citizens they are sworn to protect.”). In his
Response brief, Plaintiff argues the Complaint “has
sufficiently alleged that Sheriff [Regalado] was responsible
for several such policies or customs which were the moving
force behind the Fourth Amendment violations, ” (Doc.
No. 17, at 10), but the Complaint does not provide any facts
describing these alleged policies or customs, which renders
the Complaint facially inadequate.
most specific allegation against Sheriff Regalado is that he
failed to discipline Deputy Long for his actions in shooting
Plaintiff, despite eye-witness evidence indicating the use of
deadly force was unjustified. (Doc. No. 2, ¶ 15).
However, Plaintiff does not allege any facts suggesting that
this incident represented a persistent or widespread practice
or an official policy. Even taken as true, Plaintiff's
allegation of a single incident of failure to discipline does
not amount to an official custom or policy. See
Fraire, 957 F.2d at 1278. Nor does the Complaint's
general description of Sheriff Regalado's failure to
discipline Deputy Long raise a plausible inference that
Sheriff Regalado deliberately deprived Plaintiff of his
constitutional rights. See Robbins, 519 F.3d at 1247
(“allegations must be enough that, if assumed to be
true, the plaintiff plausibly (not just speculatively) has a
claim for relief”). Without more, Plaintiff has not
plausibly alleged Sheriff Regalado's actions or omissions
“may fairly be said to represent official
policy.” Monell, 436 U.S. at 694. Accordingly,
dismissal of the § 1983 claim against Sheriff Regalado
foregoing reasons, Defendant Sheriff Vic Regalado's
partial Motion to Dismiss (Doc. No. 5) is hereby GRANTED.
Plaintiff's First Cause of Action is dismissed without
prejudice as to Defendant Sheriff Regalado. Plaintiffs Second