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Duran v. Muse

United States District Court, N.D. Oklahoma

October 23, 2017

JONATHAN DURAN, Plaintiff,
v.
CPL. JASON B. MUSE, et al. Defendants.

          OPINION AND ORDER

          TERENCE KERN, United States District Judge

         Before the Court are Defendants' Motion to Dismiss (Doc. 53); Defendants' Motion for Summary Judgment (Doc. 64); and Plaintiff's Motion for Summary Judgment (Doc. 61).[1]

         I. Defendants' Motion to Dismiss

         A. Background and Factual Allegations[2]

         On the evening of April 18, 2015, officers of the Tulsa Police Department (“TPD”), led by Corporal Jason B. Muse (“Muse”), went to Plaintiff's home in the course of child welfare investigation by the Oklahoma Department of Human Services (“DHS”). The investigation was based on allegations of sexual abuse and other abuse and neglect of “J.D., ” a six-year-old girl residing in the home. Plaintiff alleges that the investigation was based on a false tip from an unreliable witness. Within thirty minutes of arriving at Plaintiff's home, Muse broke down the door and entered the home. (Third Am. Compl. (“TAC”), Doc. 28, ¶ 1.) Before forcing entry, Muse yelled, “Open this door or we are going to splatter you all over the floor, ” (id. ¶ 3), but he did not inform Plaintiff of a warrant (id. ¶¶ 1, 2). Upon entering the home, Muse asked, “What is the name of this girl that I am here to get?” (Id. ¶ 3.) Muse then removed J.D. from the home “forcefully (at gunpoint).” (Id. ¶ 3.) Plaintiff was arrested on charges of obstructing an officer based on his alleged refusal to permit officers to enter the home.

         The TAC alleges that the entry into Plaintiff's home and seizure of J.D. were done without “any kind of court order authorizing such action.” (TAC, ¶ C(1).) In his response brief (Doc. 56), Plaintiff concedes that Muse was informed of a verbal court order before the forced entry. However, Plaintiff alleges the verbal order was not a valid warrant to enter his home.

         B. Claims Alleged

         Plaintiff is a pro se litigant participating in this proceeding in forma pauperis; accordingly, the Court construes his allegations liberally. The TAC is written on a standard complaint form provided by the Court. Under “Jurisdiction, ” the TAC alleges the following: “Civil Rights Violations, Constitutional Law violations, Malicious prosecution, False imprisonment, Child kidnapping, Home invasion, Burglary, [and] Death Threats.” (TAC, ¶ B.) The TAC names Muse in his official and individual capacity as well as the City of Tulsa (the “City”). However, the TAC does not clearly set forth which causes of action Plaintiff asserts against which defendant or defendants. Based on allegations in the TAC and Plaintiff's arguments in his response brief, the Court construes Plaintiff's causes of action as follows:[3]

1. Fourth Amendment violation under 42 U.S.C. § 1983 (“§ 1983”) based on unreasonable search and seizure, arising from the forced entry into Plaintiff's home to seize J.D.;[4]
2. Fourth Amendment violation under § 1983 based on false arrest, arising from Plaintiff's arrest for obstructing an officer;
3. Fourth Amendment violation under § 1983 based on malicious prosecution, arising from Plaintiff's arrest for obstructing an officer; and 4. Fourteenth Amendment violation under § 1983 alleging false imprisonment based on Plaintiff's arrest and detainment.

         For the purpose of Defendants' motion to dismiss, the Court assumes Plaintiff alleges each claim against the City and against Muse in both his individual and official capacities. Plaintiff alleges damages of “$1, 600, 000 dollars . . . for mental suffering and anxiety as well as other damages[, ] . . . punitive damages against Cpl. Muse in his Individual Capacity[, ] and 3, 000 dollars in structural damage to my home.” (TAC, ¶ E.)

         Defendants filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) to dismiss the claims set forth in Paragraph B(1) of the TAC. Defendants also contend Muse is entitled to qualified immunity and Plaintiff's official capacity claim against Muse should be dismissed.

         C. Rule 12(b)(6) Standard

         In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief may be granted. “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

         The Tenth Circuit has interpreted “plausibility, ” the term used by the Supreme Court in Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be true.” Robbins v. Okla. ex rel. Okla. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Id. at 1248.

         In the specific context of § 1983 actions in which officers are sued personally and have asserted the defense of qualified immunity at the Rule 12(b)(6) stage, the Tenth Circuit has stated:

To nudge their claims across the line from conceivable to plausible, in this context, plaintiffs must allege facts sufficient to show (assuming they are true) that the defendants plausibly violated their constitutional rights, and that those rights were clearly established at the time. This requires enough allegations to give the defendants notice of the theory under which their claim is made. This does not mean that complaints in cases subject to qualified immunity defenses must include all the factual allegations necessary to sustain a conclusion that defendant violated clearly established law.

Id. at 1249 (10th Cir. 2008) (internal quotation marks and citations omitted).

         “[W]hen the plaintiff is proceeding pro se, we must construe [his] pleadings liberally, ” applying a less stringent standard than is applicable to pleadings filed by lawyers. Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Gagan v. Norton, 35 F.3d 1473, 1474 n.1 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995)). However, the Court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Id. (citing Hall, 935 F.2d at 1110).

         D. Documents Outside the Pleadings

         Defendants contend the Court should consider certain Tulsa County District Court records and police reports relating to the seizure of J.D. and to Plaintiff's arrest on April 18, 2015. The Court may consider certain categories of materials without converting a motion to dismiss under Rule 12(b)(6) to one under Federal Rule of Civil Procedure 56 (“Rule 56”). The Court may take notice of documents that are incorporated by reference in the complaint, or referred to in the complaint in support of Plaintiff's claims, as long as the parties do not dispute their authenticity. Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir. 2008) (quoting Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1253-54 (10th Cir. 2005) (holding that “a document central to the plaintiff's claim and referred to in the complaint may be considered in resolving a motion to dismiss, at least where the document's authenticity is not in dispute”). The Court may also consider matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         The court records include an Order to Take Minor Child(ren) into Emergency Custody dated April 20, 2015 (the “4/20/15 Order”) (Doc. 53-1), along with supporting application materials submitted to the court, including the unsworn declaration of Burke (“Burke Declaration”) (Docs. 53-2-3) and an Emergency Custody Hearing Order dated April 21, 2015 (“4/21/15 Order”) (Doc. 53-4). Plaintiff alleges that each of these documents is forged and contains untruthful statements. Plaintiff also alleges that no valid court order existed at the time of the forced entry to his house. Plaintiff states that when he asked for a copy of the written emergency custody order, he was told by a juvenile court clerk that there was no written order, and that he did not obtain a copy of the 4/20/15 Order until it was submitted by Defendants in this lawsuit. For the purpose of Defendants' motion to dismiss, the Court may take judicial notice of the existence of the 4/20/15 Order, without taking its contents as true. See U.S. v. Mendoza, 698 F.3d 1303, 1307 (10th Cir. 2012) (holding that court dockets are “generally public documents” of which courts may take judicial notice). However, the remaining DHS and police reports will not be considered at this stage. First, the police reports Defendants attach to their motion are not referenced in the TAC. Second, Plaintiff appears to dispute the authenticity and/or veracity of at least some of the records. Accordingly, they may not be considered without converting the motion to one under Rule 56, and the Court will not consider them in analyzing Defendants' motion to dismiss.

         E. Analysis[5]

         1. § 1983 Claims of Unreasonable Search and Seizure

         Plaintiff alleges the forced entry of his home was in violation of his constitutional rights. Plaintiff appears to argue two alternative bases for this claim: (1) the seizure of J.D. from Plaintiff's home was not made pursuant to a valid warrant, and (2) even if authorized, the forced entry was unreasonable because officers failed to knock and announce their presence.

         a. Absence of Valid Warrant

         Defendants contend the forced entry of Plaintiff's home was lawful because it was done pursuant to a verbal order of Tulsa County Juvenile District Judge Doris Fransein (“Judge Fransein”) and the further order of Tulsa County Assistant District Attorney Kyle Felty (“Felty”). Defendants rely on Oklahoma Stat. tit. 10A § 1-4-201-A.2 (“§ 1-4-201-A.2”), which provides:

[A] child may be taken into custody prior to the filing of a petition . . . [b]y an order of the district court issued upon the application of the office of the district attorney. The application presented by the district attorney may be supported by a sworn affidavit which may be based upon information and belief. The application shall state facts sufficient to demonstrate to the court that a continuation of the child in the home or with the caretaker of the child is contrary to the child's welfare and there is reasonable suspicion that:
a. the child is in need of immediate protection due to an imminent safety threat, b. the circumstances or surroundings of the child are such that continuation in the child's home or in the care or custody of the parent, legal guardian, or custodian would present an imminent safety threat to the child, or c. the child, including a child with a disability, is unable to communicate effectively about abuse, neglect or other safety threat or is in a vulnerable position due to the ...

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