United States District Court, E.D. Oklahoma
A. White United States District Judge
the court is the motion of defendants Tracy Murphy and Sommer
Purdom to dismiss. This lawsuit commenced in the District
Court for Muskogee County, when plaintiff filed his petition
on June 27, 2016. The action was removed to this court and
plaintiff filed an amended complaint on October 26, 2016.
Plaintiff makes wide-ranging allegations against various
pertinent to this motion, the amended complaint alleges as
follows: Murphy is a former DHS employee (#26 at ¶3).
Purdom was or is a DHS employee (¶4). On or about May 4,
2012, Murphy and law enforcement personnel came to
plaintiff's home to “presumably” ask
questions about potential abuse of plaintiff's female
minor step-children. (¶17). On May 5, 2012, Murphy
(without sufficient investigation) notified the Town of
Haskell and a Haskell police officer that plaintiff was
committing acts of sexual abuse against children. (¶20).
On or about May 7, 2012, Purdom interviewed the female minor
children. No SANE (Sexual Assault Nurse Examiner) examination
or physical examination of the children took place. The
female minor child who was the focus of the investigation
stated that plaintiff did not sexually abuse her. (¶22).
about May 9, 2012, plaintiff and his wife were interviewed
separately by Murphy. (¶24). Murphy then had a brief
meeting with plaintiff and his wife at which a “safety
plan” was introduced and recommended for plaintiff to
voluntarily remove himself from the residence and not have
contact with his wife. (¶25). On or about May 17, 2012,
a Haskell police officer (co-defendant Thomas) informed
Murphy that additional investigation was necessary into the
alleged criminal abuse charges against plaintiff. (¶29).
Murphy took custody of the female minor children and placed
them into temporary custody with Timothy Pickard, their
biological father. Murphy had actual knowledge that Pickard
was on probation for numerous criminal charges. This conduct
violated DHS protocols and/or guidelines (¶33). Murphy
filed a petition to remove custody of the female minor
children based upon a violation of the “safety plan,
” a plan to which plaintiff had never agreed. The
petition alleged that plaintiff had violated the safety plan
on a date which had not yet occurred. (¶35). On or about
June 6, 2012, Murphy filed an affidavit alleging that
plaintiff's wife had allowed plaintiff into the home in
violation of the proposed safety plan. This allegation is
contradicted by the fact that plaintiff's wife was
clocked in at work during the pertinent time. Murphy did
nothing to investigate the truth of the matter. (¶37).
contacted a Muskogee County judge to grant an order removing
minor children from the home because plaintiff's wife was
exposing the children to sexual abuse. Murphy received such
an emergency order despite no charges being filed against
plaintiff's wife and no evidence that the safety plan had
been violated. (¶38). On June 8, 2012, DHS seized
custody of plaintiff's two young sons (i.e., the
biological children of plaintiff and his wife). (¶39).
An emergency custody hearing was held on June 11, 2012, at
which Murphy materially misrepresented the nature of the
safety plan and the violation of said plan. (¶40). On or
about June 13, 2012, plaintiff was arrested for child sexual
abuse. (¶42). He was acquitted of criminal charges in
June, 2015. (¶47). Due to the actions of movants and
others, one of the male minor children will no longer sleep
at the home of plaintiff and his wife. (¶52). “DHS
and its employees Murphy and Purdom put into motion a series
of events which caused Plaintiff's arrest and
prosecution. Plaintiff further alleges that the above parties
also took actions which led to the disruption of
Plaintiff's family environment and removal of
Plaintiff's children from his home.” (¶56).
Rule 12(b)(6), the court must assume the truth of
plaintiff's well-pleaded factual allegations and view
them in the light most favorable to plaintiff. Ridge at
Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177
(10th Cir.2007). The issue is “whether the
complaint contains ‘enough facts to state a claim to
relief that is plausible on its face.'” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (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.” Wilson v.
Montano, 715 F.3d 847, 852 (10th Cir.2013).
“[T]he degree of specificity necessary to establish
plausibility and fair notice, and therefore the need to
include sufficient factual allegations, depends on context. .
. “ Robbins v. Oklahoma, 519 F.3d 1242, 1248
Twombly standard may have greater bite” in the
context of a §1983 claim against individual government
actors, because “they typically include complex claims
against multiple defendants.” Id. at 1249.
“[I]t is particularly important in such circumstances
that the complaint make clear exactly who is alleged
to have done what to whom, to provide each
individual with fair notice as to the basis of the claims
against him or her, as distinguished from collective
allegations against the state.” Id. at 1250.
first claim against the movants is a §1983 claim for
malicious prosecution in violation of the Fourth
Amendment. The Tenth Circuit recognizes such a cause
of action. See Sanchez v. Hartley, 810 F.3d 750, 755
(10th Cir.2016), cert. denied, 2017 WL
1114967 (2017). The elements include the following: (1) the
defendant caused the plaintiff's continued confinement or
prosecution; (2) the original action terminated in favor of
the plaintiff; (3) no probable cause supported the original
arrest, continued confinement, or prosecution; (4) the
defendant acted with malice; and (5) the plaintiff sustained
damages. Id. at 754 n.1 (internal quotation marks
court concludes the first claim fails under the applicable
standard. The allegations in the amended complaint do not
establish either elements (1) or (4) as to Purdom. As for
Murphy, a defendant might be said - in an attenuated fashion
- to have “caused” a prosecution by providing
false information to a police officer. Here, however, a
break in any causative chain appears in ¶29, when the
police officer told Murphy that additional investigation was
necessary. It is alleged that the police officer ultimately
provided information to charging authorities. (¶¶23
& 30). The paragraph describing plaintiff's arrest
(¶42) is written in the passive voice. The court cannot
reasonably infer that Murphy “caused” the
prosecution. Also, the amended complaint does not allege the
third element, i.e., that the prosecution lacked probable
cause. The present motion is granted as to the first claim.
alternative, movants assert qualified immunity as to this
claim. “In resolving a motion to dismiss
based on qualified immunity, a court must consider whether
the facts that a plaintiff has alleged make out a violation
of a constitutional right, and whether the right at issue was
clearly established at the time of the defendant's
alleged misconduct.” Keith v. Koerner, 707
F.3d 1185, 1188 (10th Cir.2013). Because this
court has found that the complaint fails to plausibly allege
the violation of a constitutional right, movants are entitled
to qualified immunity.
second claim is also malicious prosecution, but based upon
the Oklahoma Constitution, specifically Art. 2, Section
Plaintiff relies on Bosh v. Cherokee County Building
Authority, 305 P.3d 994 (Okla.2013), in which the
Oklahoma Supreme Court recognized a private right of action
under this provision of the Oklahoma Constitution for
excessive-force claims by inmates. Id. at 1001. No
authority has extended a Bosh claim to malicious
prosecution, but the court need not resolve this issue,
because this claim should be dismissed on other grounds.
Bosh claims appear to be limited to actions against
political subdivisions. “Plaintiff points to no legal
authority that permits a Bosh claim against an
individual actor. . . . “ Maher v. Oklahoma,
165 F.Supp.3d 1089 n.3 (W.D.Okla.2016). Second, even if
brought under the Oklahoma Constitution, a malicious
prosecution cause of action must have essential elements,
which will be similar to the ones already articulated. The
court has already found that the amended complaint has not
plausibly alleged those elements. Accordingly, the motion is
also granted as to the second claim.
plaintiff asserts another federal claim pursuant to 42 U.S.C.
§1983 for violation of the Fourteenth Amendment,
specifically familial interference. The right to familial
association has long been recognized as a
“subset” of the freedom of intimate association.
Zane v. Kramer, 195 F.Supp.3d 1243, 1251
(W.D.Okla.2016)(citing Griffin v. Strong, 983 F.2d
1544, 1547 (10th Cir.1993)). The government's
forced separation of parent from child, even for a short
time, represents a serious impingement on a parent's
right to familial association. Id. (quoting
Thomas v. Kaven, 765 F.3d 1183, 1195
(10th Cir.2014). The right is not absolute,
however, but must be weighed against the state's interest
in protecting a child's health and safety in order to
determine whether state actors unduly burdened that right in
a given case. Id. (quoting Thomas, 765 F.3d
establish a claim for deprivation of the right of familial
association, plaintiff must prove (or for purposes of the
present motion, allege) that (1) defendant intended to deprive
him of his protected relationship with his children and that
(2) balancing plaintiff's interest in his protected
relationship with his children against the state's
interest in the children's health and safety, defendant
either unduly burdened plaintiff's ...