United States District Court, N.D. Oklahoma
REV. BARRY D. BILDER, Plaintiff,
REV. BETH MATHERS, et al., Defendants.
OPINION AND ORDER
the Court are (1) Defendant City of Tulsa's Motion for
Summary Judgment (Doc. No. 87) and (2) Defendants Church of
Holistic Science, Inc., Beth Mathers, and Ruth Bilder's
Motion for Summary Judgment (Doc. No. 73). After
consideration of the briefs, and for the reasons stated
below, Defendants' Motions for Summary Judgment are
Rev. Barry D. Bilder (“Plaintiff”), proceeding
pro se, brought this action under 42 U.S.C. §
1983 for alleged violations of his rights under the Fourth,
Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments to the
United States Constitution. Plaintiff also alleges a claim of
making a false police report and appears to allege a claim of
“selective prosecution.” (Doc. No. 58,
¶¶ 39, 40). The Third Amended Complaint names as
defendants (1) Rev. Beth Mathers (“Beth
Mathers”), (2) Ruth Bilder, (3) Church of Holistic
Science, Inc., (4) City of Tulsa, Oklahoma (“City of
Tulsa”), and (5) Detective Corey Myers
(“Detective Myers”), in his individual capacity.
The Court dismissed Detective Myers from this action on May
10, 2017, due to lack of proper service. (Doc. No. 152).
record reveals the following events took place. On March 18,
2014, the Tulsa Police Department (“TPD”)
responded to a report of an attempted abduction of two girls.
(Doc. No. 87-2 (Police Report), at 2). The girls informed the
responding officers that they were selling lemonade at the
end of a driveway, when a man driving a gold colored Nissan
Maxima drove up and bought a cup of lemonade. (Id.;
Doc. No. 87-3 (Witness Statements)). The man attempted to
entice the girls to get into his car so he could take them to
his “studio, ” where he said they could make some
money. (Doc. No. 87-2, at 2). The girls refused and ran
inside the house, taking the cup from which the man had drunk
with them. (Id.). A neighbor had a surveillance
camera that showed the gold car being driven by the suspect.
(Id.; Doc. No. 87-3 (Statement of Jennifer Harmon)).
The neighbor provided a copy of the CD from her camera to
TPD. (Doc. No. 87-3). TPD collected the lemonade cup from
which the man had drunk and had it analyzed for DNA. (Doc.
No. 87-4 (Affidavit for Search Warrant)). The DNA on the cup
matched the DNA of an unidentified suspect in the rape and
kidnapping of a 12-year-old girl. (Id.; Doc. No.
87-5 (Affidavit of Detective Myers), ¶ 12).
Sunday in late April or early May of 2014, Detective Myers at
TPD was driving in Tulsa while off-duty, when he noticed a
tan/gold Nissan Maxima being driven near him. (Doc. No. 87-5,
¶ 9). Detective Myers took down the license plate
number, and when he returned to work, he researched who owned
the car. (Id. ¶ 10). Detective Myers learned
that the car was registered to the Church of Holistic
Science. (Id. ¶ 13). TPD officers visited the
church and spoke with Ruth Bilder and Beth Mathers, who told
them the car was in Plaintiff's possession. (Id.
¶ 14; Doc. No. 73-1 (Affidavit of Beth Mathers),
¶¶ 7-8; Doc. No. 73-2 (Affidavit of Ruth Bilder),
¶¶ 7-8). Ms. Bilder advised Detective Myers that
she was married to Plaintiff, but they were in the process of
obtaining a divorce. (Doc. No. 87-5, ¶ 14). Both Ms.
Mathers and Ms. Bilder state in their respective Affidavits
that they informed TPD officers that they did not believe
Plaintiff to be the person TPD was seeking and
“exonerated” Plaintiff in their interviews with
TPD. (Doc. No. 73-1, ¶¶ 8-9; Doc. No. 73-2,
8, 2014, two TPD detectives visited Plaintiff's address
and advised him that his car matched the description of a car
involved in an attempted kidnapping. (Doc. No. 87-5, ¶
15; Doc. No. 87-4). The TPD officers asked Plaintiff to
voluntarily submit a DNA sample by buccal swab to rule him
out as a suspect. (Doc. No. 87-4; Doc. No. 87-5, ¶ 15).
Plaintiff refused to submit a DNA sample and advised the
detectives to speak with his lawyer. (Doc. No. 87-4; Doc. No.
87-5, ¶ 16).
9, 2014, Detective Myers prepared an Affidavit for Search
Warrant, which states in relevant part:
The listed suspect is in possession of a Tan/Gold Nissan
Maxima with tinted windows that matches the suspect vehicle
listed in the attempted kidnapping from 3533 S. Louisville
Ave. DNA was collected and preserved from the lemonade cup.
Detectives Reid and Watkins visited the above listed suspect
at his address on May 8, 2014 to get a DNA sample. The
suspect refused to comply with giving his sample. The suspect
stated that he had an attorney out of Creek County. Detective
Watkins asked defendant to have his attorney call detective
Myers. As [sic] May 9, 2014 I have not heard from the
A DNA profile matched both cases on an unidentified suspect.
Your affiant requests the issuance of a search warrant to
obtain buccal swabs from the defendant to obtain a DNA sample
to compare to the evidence collected.
No. 87-4). The Affidavit states Detective Myers believed
everything contained therein to be accurate and truthful at
the time he prepared the Affidavit. (Doc. No. 87-4).
Detective Myers reiterates this belief in the Affidavit he
prepared for this case. (Doc. No. 87-5, ¶ 17). A
magistrate judge signed the Affidavit for Search Warrant on
May 11, 2014. (Doc. No. 87-4).
warrant division was unable to intercept Plaintiff to serve
the warrant. (Doc. No. 87-5, ¶ 21). Plaintiff asserts
his attorney provided TPD with an agreed time and place for
Plaintiff to provide his DNA sample, although Detective Myers
disputes such an agreement was made. (Id. ¶ 19;
but see Doc. No. 122 (correspondence from Edge Law
Firm to Plaintiff, May 16, 2014), at 16) (stating,
“[t]hey have a valid warrant to collect your DNA. They
have given us a gentleman's agreement to collect this on
Monday.”)). Detective Myers then attempted to intercept
Plaintiff at a QuikTrip location to serve the warrant, but he
arrived as Plaintiff was leaving. (Doc. No. 87-5, ¶ 22).
Detective Myers pulled over Plaintiff's car so the
warrant could be served and the buccal swab taken.
(Id.). When Plaintiff's buccal swab was run for
DNA and compared with the DNA collected from the two crimes,
TPD learned Plaintiff's DNA did not match that of the
suspect. (Id. ¶ 23). Therefore, Plaintiff was
never charged, arrested, or brought into the police station
in connection with this investigation. (Id. ¶
Third Amended Complaint, Plaintiff alleges Defendants Beth
Mathers and Ruth Bilder “knowingly, and with criminal
intent to harm the Plaintiff, made a false report to the
Tulsa Police, through its agent, Defendant Det. Corey
Myers.” (Doc. No. 58, ¶ 40). Plaintiff further
alleges TPD violated his rights under the Fourth, Fifth,
Sixth, Ninth, Tenth, and Fourteenth Amendments to the United
States Constitution, and appears to claim he was selectively
prosecuted by TPD. (Id. ¶¶ 39, 45, 47).
All remaining defendants have now moved for summary judgment.
(Doc. Nos. 73, 87). Defendants Church of Holistic Science,
Inc., Beth Mathers, and Ruth Bilder have adopted the Motion
for Summary Judgment and attached exhibits filed by the City
of Tulsa. (Doc. No. 88). The motions are fully briefed and
ripe for review.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
dispute is genuine if the evidence is such that “a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is material if it “might
affect the outcome of the suit under the governing
law.” Id. In making this determination,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Id. at 255.
a party opposing a motion for summary judgment may not simply
allege there are disputed issues of fact; rather, the party
must support its assertions by citing to the record or by
showing the moving party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c). “[B]ecause at
summary judgment we are beyond the pleading phase of the
litigation, a plaintiff's version of the facts must find
support in the record.” Thomson v. Salt Lake
County, 584 F.3d 1304, 1312 (10th Cir. 2009).
Specifically, “[a]s with any motion for summary
judgment, when opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that
no reasonable jury could believe it, a court should not adopt
that version of the facts.” York v. City of Las
Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (quoting
Scott v. Harris, 550 U.S. 372, 380 (2007))
(quotation marks omitted). Moreover, “[i]n a response
to a motion for summary judgment, a party cannot rely on
ignorance of facts, on speculation, or on suspicion and may
not escape summary judgment in the mere hope that something
will turn up at trial.” Conaway v. Smith, 853
F.2d 789, 794 (10th Cir. 1988) (citations omitted). In
addition, “[t]he mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact.” Scott, 550 U.S. at
380 (quoting Anderson, 477 U.S. at 247-248). Thus,
the inquiry for this Court is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477
U.S. at 251-52.
Court further notes that, while pro se pleadings
must be liberally construed and must be held to less
stringent standards than formal pleadings drafted by lawyers,
Haines v. Kerner, 404 U.S. 519, 520 (1972), a
district court should not assume the role of advocate.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Moreover, even pro se plaintiffs are required
to comply with the “fundamental requirements of the
Federal Rules of Civil and Appellate Procedure, ” and
the liberal construction to be afforded does not transform
“vague and conclusory arguments” into valid
claims for relief. Ogden v. San Juan County, 32 F.3d
452, 455 (10th Cir. 1994). The court “will not supply