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Shed v. State ex rel Oklahoma Department of Human Services

United States District Court, E.D. Oklahoma

April 25, 2017

STATE OF OKLAHOMA ex rel Oklahoma Department of Human Services,, Defendants.


          Ronald A. White United States District Judge

         Before 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 defendants.

         As 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).

         On or 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).

         Murphy 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).

         Under 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 (10th Cir.2008).

         “The 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.

         The first claim against the movants is a §1983 claim for malicious prosecution in violation of the Fourth Amendment.[1] 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 omitted).[2]

         The 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.[3] 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.

         In the alternative, movants assert qualified immunity as to this claim.[4] “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.

         The second claim is also malicious prosecution, but based upon the Oklahoma Constitution, specifically Art. 2, Section 30.[5] 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.

         First, 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.

         Next, 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 at 1196.).

         To establish a claim for deprivation of the right of familial association, plaintiff must prove (or for purposes of the present motion, allege)[6] 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 ...

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