United States District Court, N.D. Oklahoma
AMENDED OPINION AND ORDER
TERENCE KERN, UNITED STATES DISTRICT JUDGE.
the Court are Defendants' Motion to Dismiss (Doc. 53);
Defendants' Motion for Summary Judgment (Doc. 64); and
Plaintiff's Motion for Summary Judgment (Doc.
Defendants' Motion to Dismiss
Background and Factual Allegations
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.
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.
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
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.;
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
false imprisonment, arising from Plaintiff's arrest for
obstructing an officer; and
4. Fourteenth Amendment violation under § 1983 alleging
malicious prosecution based on Plaintiff's arrest and
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.)
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
Rule 12(b)(6) Standard
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).
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
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
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).
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
Documents Outside the Pleadings
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
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.
§ 1983 Claims of Unreasonable Search and
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
Absence of Valid Warrant
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
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