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Bilder v. Mathers

United States District Court, N.D. Oklahoma

May 12, 2017

REV. BARRY D. BILDER, Plaintiff,
REV. BETH MATHERS, et al., Defendants.


         Before 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 GRANTED.


         Plaintiff 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).

         The 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).

         On a 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, ¶¶ 8-9).

         On May 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).

         On May 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 suspect's attorney.
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.

         (Doc. 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).

         The TPD 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. ¶ 24).

         In his 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.


         Summary 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.

         However, 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.

         The 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 ...

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