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Cowan v. Hunter

United States District Court, N.D. Oklahoma

March 8, 2018

DONALD RAY COWAN, Plaintiff,
v.
MIKE HUNTER, ET. AL., Defendants.

          OPINION AND ORDER

          TERENCE C. KERN, United States District Judge

         Before the Court are the following motions: (1) Plaintiff's Motion to Strike the Motion to Dismiss of Tulsa County Sheriff Vic Regalado and Motion to Reset Response Deadlines (Doc. 19)[1]; (2) Defendant Vic Regalado's Motion to Dismiss for Failure to State a Claim (Doc. 15); (3) Defendants Mike Hunter's and Joe Allbaugh's Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Doc. 26); (4) Defendants Mike Huff's, Michael Nance's, Richard Meulenberg IV's, and the City of Tulsa's Motion to Dismiss for Failure to State a Claim (Doc. 76) (adopting Doc. 26 in toto); and (5) Defendant Steven Kunzweiler's Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Doc. 78). For reasons discussed below, motion (1) is DENIED and motions (2)-(5) are GRANTED.

         I. Background and Factual Allegations

         This case arises out of Plaintiff Donald Ray Cowan (“Plaintiff”)'s past conviction for first degree manslaughter. At the time of the events leading to his conviction, Plaintiff was employed as an armed security guard for a Section 8 housing apartment complex. On January 10, 2004, while performing his duties, Plaintiff, a Caucasian man, shot and killed Ronald Henderson (“Henderson”), an African-American man.

         On January 3, 2005 Plaintiff was charged with one count of first degree manslaughter. On November 15, 2007, Plaintiff was convicted by jury trial in Tulsa County District Court and sentenced to four years in the custody of the Department of Corrections.[2] He was released on May 17, 2011. Plaintiff filed this action on June 8, 2017. (Doc. 1.) He filed his Amended Complaint on July 7, 2017 (Doc. 6), naming the following parties as Defendants: Oklahoma Attorney General Mike Hunter (“Hunter”); District Attorney for Tulsa County Steven Kunzweiler (“Kunzweiler”); Tulsa Police Detectives Mike Huff (“Huff”), Michael Nance (“Nance”), and Tulsa Police Officer Richard Gerald Meulenberg IV (“Meulenberg”); City of Tulsa; Sheriff of Tulsa County Vic Regalado (“Regalado”); and Director of the Oklahoma Department of Corrections Joe Allbaugh (“Allbaugh”) (collectively, “Defendants”). The Sheriff of Comanche County was also named in the Amended Complaint but was terminated from this litigation on October 23, 2017. (Doc. 58.)

         Defendants Hunter, Allbaugh, Kunzweiler, Huff, Nance, Meulenberg, and City of Tulsa have filed motions to dismiss for lack of subject-matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”). Additionally, all Defendants have filed motions to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”).

         II. Claims Alleged

         Plaintiff is a pro se litigant; accordingly, the Court construes his allegations liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Court can reasonably read the pleadings to state a valid claim on which the plaintiff would prevail, it should do so “despite the plaintiff's failure to cite proper legal authorities, his confusion of various legal theories, his poor syntax and sentence structure, or his unfamiliarity with pleading requirements.” Id. However, the Court may not assume the role of advocate for the pro se litigant. See id. Based on the allegations in Plaintiff's Amended Complaint (Doc. 6), the Court construes Plaintiff's causes of action as follows:

1. As-applied challenge to Okla. Stat. Ann. tit. 21 sec. § 711, “First Degree Manslaughter, ” under 42 U.S.C. § 1983 (“§ 1983”), for violating the Fourth Amendment and Fourteenth Amendment, naming Defendants Kunzweiler and Hunter.
2. As-applied challenge to Okla. Stat. Ann. tit. 21 sec. § 1289, “Oklahoma Firearm Control Act of 1971, ” under § 1983, for violating the Fourth Amendment and Fourteenth Amendment, naming Defendants Kunzweiler and Hunter.[3]
3. Fourteenth Amendment equal protection violation under § 1983, for singling Plaintiff out for prosecution based on his race, against Defendant City of Tulsa, Tulsa County and Defendant Kunzweiler in his individual capacity.
4. Fourteenth Amendment due process violation under § 1983, for manufacturing and presenting false circumstantial evidence to enable the city to violate Plaintiff's Second Amendment rights, against Defendant City of Tulsa, and Tulsa County.[4]
5. Fourth Amendment violation under § 1983, for the unlawful seizure of Plaintiff's gun, against Defendants Kunzweiler, Huff, Nance, and Meulenberg.
6. Fourth Amendment violation under § 1983, for manufacturing evidence to support the unlawful seizure of Plaintiff's gun, against Defendants Kunzweiler, Huff, Nance, and Meulenberg.
7. Fourteenth Amendment due process violation under § 1983, for prosecuting Plaintiff for exercising his Second Amendment rights, against Defendants Kunzweiler, Huff, Nance, and Meulenberg.
8. Eighth Amendment violation under § 1983, because going to prison was humiliating, against Defendants Kunzweiler, Huff, Nance, and Meulenberg.
9. Second Amendment violation under § 1983, for failure to supervise and provide proper training to its police force regarding citizens' Second Amendment rights, against Defendant City of Tulsa.[5]
10. Fourteenth Amendment due process violation under § 1983 for failure to supervise officers who manufactured evidence and perjured themselves while under oath, against Defendant City of Tulsa.
11. Fourth Amendment violation under ยง 1983 for seizing Plaintiff's gun without a property receipt, against ...

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