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Salazar v. City of Oklahoma City, ex rel. Oklahoma City Police Department

United States District Court, W.D. Oklahoma

June 12, 2017

BERNABE SALAZAR, JR., as Parent and Next Friend of MARK ANGEL SALAZAR, Deceased, Plaintiff,
v.
THE CITY OF OKLAHOMA CITY, ex rel. OKLAHOMA CITY POLICE DEPARTMENT and RYAN STARK, Defendants.

          ORDER

          VICKI MILES-LaGRANGE UNITED STATES DISTRICT JUDGE.

         Before the Court is defendants' Motion to Dismiss Portions of Plaintiff's First Amended Complaint, filed September 7, 2016. On September 28, 2016, plaintiff filed his response. On October 5, 2016, defendant City of Oklahoma City (“City”) filed its reply, and on October 6, 2016, defendant Ryan Stark filed a joinder to defendant City's reply. On March 31, 2017, defendant City filed a Notice to the Court.

         I. Introduction[1]

         On August 24, 2014, Mark Salazar (“Salazar”) was involved in a police pursuit. At some point during the pursuit, Stark released his law enforcement canine, and the canine attacked Salazar. In response, Salazar began to protect himself from the attack. Stark then began to shoot Salazar who was lying on the ground. Specifically, Stark fired six shots in the body of Salazar, including one in his upper left arm, four shots in his back, and one in his left thigh, which ultimately killed Salazar.

         On May 4, 2016, plaintiff Bernabe Salazar, Jr., the father of Salazar, filed the instant action. On August 24, 2016, plaintiff filed a First Amended Complaint alleging the following causes of action against defendants: (1) excessive force, (2) 42 U.S.C. § 1983, (3) failure to train, supervise and control, (4) negligence, and (5) infliction of emotional distress. Defendants now move to dismiss portions of plaintiff's First Amended Complaint.[2]

II. Standard for Dismissal

         Regarding the standard for determining whether to dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted, the United States Supreme Court has held:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Id. at 679 (internal quotations and citations omitted). Additionally, “[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.” Id. at 678 (internal quotations and citations omitted). A court “must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (internal quotations and citation omitted). Finally, “[a] court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

         III. Discussion

         A. Municipal liability

         In order to establish municipal liability, a plaintiff must identify a government's policy or custom that caused the injury and that was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013). Having carefully reviewed plaintiff's First Amended Complaint, the Court finds that plaintiff has failed to state a § 1983 claim against defendant City. Specifically, the Court finds that plaintiff has not set forth sufficient facts showing the City had a policy or custom that caused plaintiff's injury. In his First Amended Complaint, plaintiff does not allege any specific policy or custom or allege how said policy or custom caused plaintiff's injury. Plaintiff's First Amended Complaint simply sets forth conclusory allegations. Accordingly, the Court finds that plaintiff's § 1983 claim against defendant City should be dismissed.

         B. Failure to train, supervise, and control

         In his First Amended Complaint, plaintiff asserts a failure to train, supervise, and control cause of action against defendant City. Having reviewed plaintiff's First Amended Complaint, the Court finds that plaintiff has failed to state a claim for failure to train, supervise, and control against defendant City. In his complaint, plaintiff sets forth absolutely no factual allegations to support this cause of action. Specifically, plaintiff does not allege how defendant City failed to train, supervise, and control defendant Stark or ...


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