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Malone v. City of Wynnewood

United States District Court, W.D. Oklahoma

August 24, 2017

VICKIE MALONE, et al., Plaintiffs,
THE CITY OF WYNNEWOOD, OKLAHOMA, a Municipal Corporation, et al. Defendants.



         Plaintiffs filed this case in state court against the City of Wynnewood and Joshua Franklin, a Wynnewood police officer. The claims included federal claims brought pursuant to 42 U.S.C. § 1983 and the case was removed to this court on that basis. Following removal, defendants sought dismissal pursuant to Fed.R.Civ.P. 12(b)(6). The court granted defendants' motion, with plaintiffs granted leave to amend so that the complaint could be restated to comply with federal pleading standards. Plaintiff later filed an amended complaint (the “complaint” hereafter). Defendants have again moved to dismiss, contending that the complaint fails to state a claim as to most plaintiffs and claims.

         When considering whether claims should be dismissed under Fed.R.Civ.P. 12(b)(6), the court accepts all well-pleaded factual allegations of the complaint as true and views them in the light most favorable to the plaintiff, the non-moving party. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). To avoid dismissal, the complaint must allege “enough facts to state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

         The plaintiffs are five adults and eight minor children, all related to each other. According to the complaint, they had gathered at a home in Wynnewood, Oklahoma, for a birthday party. The plaintiffs were allegedly inside the house when defendant Franklin approached the home and shot the family dog, Opie, from outside the fenced yard. The family heard the gunshot and came outside. The complaint alleges that Officer Franklin then entered the yard-in spite of a “No Trespassing” sign-as the family came out of the home. A second shot was fired, apparently by Franklin, to kill the dog. Plaintiffs filed tort claims with the City of Wynnewood and later filed this suit against the City and Officer Franklin. Plaintiffs assert federal claims pursuant to 42 U.S.C. § 1983 and state claims under Oklahoma law.


         1. Federal claims.

         The complaint is not a model of clarity as to exactly what federal claims are being asserted and against which defendants. However, plaintiffs' response brief appears to clarify that they are not asserting a Fourth Amendment excessive force claim against anyone. Further, the response also makes reasonably clear that plaintiffs are not asserting any federal claim against the City of Wynnewood.[1] The § 1983 claims are asserted only against defendant Franklin, the police officer. The claims are based on the Fourth Amendment, one for unreasonable search and one for unreasonable seizure.

         Defendants' brief appears to concede that a federal claim for unreasonable seizure is stated in favor of at least some of the plaintiffs. As defendants properly acknowledge, the killing of a pet dog can constitute a “seizure” for Fourth Amendment purposes and is a violation of the owner's rights absent a warrant or some applicable exception to the warrant requirement. Mayfield v. Bethards, 826 F.3d 1252, 1256 (10th Cir. 2016). Here, the complaint alleges facts sufficient to state such a claim.

         But a claim in favor of whom? As Mayfield noted, the killing of a pet dog is a potential violation of “the owner's Fourth Amendment rights.” Id. Here, the seizure claim is asserted by all thirteen plaintiffs, but defendants challenge whether a basis for ownership of the dog is alleged as to each of them. The complaint alleges that the dog was “owned jointly” by all thirteen plaintiffs, including eight minor children living in two separate households [Doc. #15] at ¶ 6. Such an allegation, though unusual, would ordinarily end the “ownership” issue for purposes of pleading sufficiency. However, as defendant correctly points out, the complaint also explicitly adopts by reference the notices of tort claim that plaintiffs previously filed with the City of Wynnewood [Doc. #15] at ¶ 11.[2]Those notices all explicitly identified the owners of the dog, and did not identify all thirteen plaintiffs.

         In appropriate circumstances, where a complaint references extrinsic documents which contradict other general allegations in the complaint, a court is not obliged to accept the contradicted allegations as true. Rather, in a proper case, the “document's facts or allegations trump those in the complaint.” See Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1238 (10th Cir. 2014) (quoting Flannery v. Recording Indus. Ass'n, 354 F.3d 632, 638 (7th Cir. 2004)); see also Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190, 1196 (10th Cir. 2013). Here, there is a direct contradiction between the tort claims and the allegations in the complaint. The four notices all make explicitly clear that the dog was the property of plaintiff Vickie Malone and her children, and perhaps of Teddy Cheek, not all thirteen plaintiffs.[3] Each of the tort claims were sworn statements, notarized and under oath. Further, the notices were explicitly incorporated into the complaint. In these circumstances, the court concludes the tort claims, rather than the more general allegations of ownership in the complaint, must be taken as true.[4] Only plaintiffs Vickie Malone, her minor children, E.C. and N.C., and Teddy Cheek have stated plausible claims based on ownership of the dog. The Fourth Amendment seizure claims will therefore be dismissed as to all plaintiffs other than those just indicated.

         The Fourth Amendment search claims will also be dismissed. Plaintiffs claim that Officer Franklin conducted an unreasonable search by entering the fenced yard after shooting their dog. Officer Franklin raises the defense of qualified immunity, arguing primarily that he did not violate plaintiffs' rights, as he had an implied license to enter the yard.

         As a threshold matter, it is doubtful that the complaint alleges anything as to Officer Franklin that would constitute a “search” within the meaning of the Fourth Amendment. The essence of a “search” is the intrusion of the government into or onto a protected area for the purpose of obtaining information. See United States v. Jones, 565 U.S. 400, 404, 406 & n.3 (2012). There is nothing in the complaint to suggest that Officer Jones was in the yard seeking information. Rather, the complaint alleges only that he entered the yard with his gun, presumably to put the wounded dog out of its misery. Whether that act violated the Fourth Amendment is the question raised by the “seizure” claim, rather than by a separate “search” claim.

         Further, even if it be assumed that a search was somehow involved, the complaint does not allege a basis for concluding an unreasonable search occurred. It is clear, as defendants concede, that the Fourth Amendment protects against unreasonable searches both of a person's home and of the curtilage-here, the yard-of the home. Florida v. Jardines, 133 S.Ct. 1409, 1414-15 (2013) (the curtilage-“the area immediately surrounding and associated with the home”-is considered part of the home for Fourth Amendment purposes). However, an implicit license exists that permits visitors “to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. at 1414-16. This implied license exists even in the face of signage prohibiting trespassing. See United States v. Carloss, 818 F.3d 988, 994-95 (10th Cir. 2016).

         Here, the complaint alleges nothing to suggest that Officer Franklin's conduct, if he actually was seeking information of some sort, was outside the scope of the implied license. So far as appears from the complaint's allegations, Franklin entered the yard, dealt with the dog, and ...

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