United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE
the court is the Partial Motion to Dismiss [Doc. 10] of
defendants Delaware Board of County Commissioners (the
“Board”) and Harlan Moore.
of their first proposition for partial dismissal, movants
argue that plaintiffs have failed to state a plausible claim
for abuse of process against the Board, as the First Amended
Complaint is devoid of allegations that Moore improperly used
a court's process against plaintiffs for some ulterior or
improper purpose. Greenberg v. Wolfberg, 890 P.2d
895, 905 (Okla. 1994) (“[t]he tort's elements are
(1) the improper use of the court's process (2)
primarily for an ulterior or improper purpose (3)
with resulting damage to the plaintiff asserting the
misuse”). The court agrees. Plaintiffs'
allegations go to “the wrongfulness of the
prosecution” against the plaintiffs, not “some
extortionate perversion of lawfully initiated process to
illegitimate ends, ” which is “the
quintessence” of abuse of process. Id.
also contend that the Board is immune from suit for
plaintiffs' state law tort claims of abuse of process and
negligent training, supervision and hiring.
Board contends it is immune from suit on plaintiffs'
abuse of process claim because the claim necessarily excludes
good faith conduct on the part of the Board's employees.
Oklahoma's Governmental Tort Claims Act
(“OGTCA”) provides that the state or a political
subdivision shall not be liable for any act or omission of an
employee acting outside the scope of the employee's
employment. Okla. Stat. tit. 51, § 153(a). Section
152(12) of the OGTCA defines “scope of
employment” as “performance by an employee acting
in good faith within the duties of the employee's office
or employment . . . .” In support of its claim of
immunity, the Board cites Fehring v. State Insurance
Fund, 19 P.3d 276, 284 (Okla. 2001). In Gowens v.
Barstow, 364 P.3d 644, 652 (Okla. 2015), the Oklahoma
Supreme Court overruled Fehring “to the extent
that [Fehring's] holding provides that acts
performed with reckless disregard for an individual's
rights automatically lack good faith in cases where the tort
at issue does not require proof of an element that
necessarily excludes good faith conduct or requires a showing
of malice.” The issue, then, is whether the tort of
abuse of process necessarily requires proof of an element of
bad faith or malice. The court concludes that it does. In
Neil v. Pennsylvania Life Insurance Company, 474
P.2d 961, 965 (Okla. 1970), the Oklahoma Supreme Court,
quoting 1 Am. Jur.2d, Abuse of Process, § 1, wrote:
Abuse of legal process consists in the malicious misuse or
misapplication of that process to accomplish some purpose not
warranted or commanded by the writ. In brief, it is the
malicious perversion of a regularly issued civil or criminal
process, for a purpose and to obtain a result not lawfully
warranted or properly attainable thereby, and for which
perversion an action will lie to recover the pecuniary loss
as the tort of abuse of process necessarily requires proof of
an element of bad faith or malice, the Board is immune from
suit on that cause of action. Burns v. Holcombe, No.
CIV-11-240-JHP, 2013 WL 3154120, at *16 (E.D. Okla. June 21,
Board argues it is also immune from suit on plaintiffs'
claim of negligent training, supervision and hiring. In
support, the Board points to Okla. Stat. tit. 51, §
155(5), which exempts the state or a political subdivision
from liability if a loss or claim results from
“[p]erformance of or the failure to exercise or perform
any act or service which is in the discretion of the state or
political subdivision or its employees.” The Board
cites Jackson v. Oklahoma City Public Schools, 333
P.3d 975, 979 (Okla.Civ.App. 2014), but Jackson is
not a precedential decision,  and neither party has disclosed a
controlling decision regarding the applicability of the
discretionary function exemption to a claim of negligent
hiring, training, and supervision. The court's research
has revealed Houston v. Independent School District No.
89 of Oklahoma County, 949 F.Supp.2d 1104 (W.D. Okla.
2013), wherein Judge DeGiusti notes the Oklahoma Supreme
Court's caution against a broad application of §
155(5) since all acts of government employees involve some
element of choice and judgment and would thus result in
immunity if the discretionary exemption is not narrowly
construed. See Nguyen v. State, 788 P.2d 962, 964
(Okla. 1990). Judge DeGiusti's decision in
Houston regarding the application of § 155(5)
turns on the distinction between initial policy level or
planning decisions, which are considered discretionary and
hence immune, and operational level decisions made in the
performance of policy, which are considered ministerial and
not exempt from liability. Houston, 949 F.Supp.2d at
1109; Nguyen, 788 P.2d at 964-65. Because neither
party has addressed the application of this distinction in
the context of this case, the court will not dismiss
plaintiffs' state law claim for negligent training,
supervision and hiring on this basis.
their second proposition for partial dismissal, movants
assert that this court lacks subject-matter jurisdiction over
plaintiffs' state law claims because plaintiffs failed to
give notice of their tort claim within one year of the date
the loss occurred, as required by § 156(B) of the OGTCA.
Movants take the position that plaintiffs allegedly sustained
losses between July 1 and July 20, 2016, but that plaintiffs
didn't submit their tort claim notice to the Board until
August 4, 2017, more than one year later.
respond that their state tort claims did not accrue until
dismissal of the criminal case against them on or about
January 20, 2017, because “the months of decisions in
pursuit of charges against [them] constitute continuing
unlawful acts.” Alternatively, plaintiffs contend that
defendants' conduct estops them from raising any time-bar
issues; that the county actively concealed defendants'
negligence; that “[t]he extent of the tort involved in
this case could not have been discovered until receipt of
discovery materials, receipt of body cam footage, and receipt
of Meador's sworn testimony on or about January 20,
2017;” and, citing a Kansas Supreme Court case from
1893, that imprisonment constitutes a “legal
disability” entitling a plaintiff to equitable tolling.
OGTCA provides the exclusive remedy for an injured plaintiff
to recover against a governmental entity in tort. Smith
v. City of Stillwater, 328 P.3d 1192, 1198 (Okla. 2014).
The OGTCA narrowly structures the method and time frame for
bringing a tort claim against the State. Okla. Stat. tit. 51
§ 156. It requires that the plaintiff give notice within
the prescribed statutory time limits. Jarvis v. City of
Stillwater, 732 P.2d 470, 473 (Okla. 1987).
“Compliance with the statutory notice provisions of the
[OGTCA] is a jurisdictional requirement to be completed prior
to the filing of any pleadings.” Hall v. The GEO
Group, Inc., 324 P.3d 399, 404 (Okla. 2014).
allege in the First Amended Complaint that Delaware County
Deputy Sheriff Sean Meador executed a search warrant on their
property and arrested them on July 2, 2016. They allege they
were falsely held in the county jail for eighteen (18) days.
Thus, plaintiffs' “date of loss” under the
OGTCA was not the date the criminal charges were dismissed in
January 2017, but the period in July 2016 during which they
were incarcerated and bonded out of jail. See Zachary v.
State Department of Corrections, 34 P.3d 1171, 1173
(Okla.Civ.App. 2001) (nonprecedential and considered for
persuasive purposes only). Plaintiffs do not allege or
otherwise explain how defendants “actively
concealed” defendants' alleged negligence or how
defendants' actions estop defendants from raising the
time-bar issue. Furthermore, plaintiffs' argument that
“[t]he extent of the tort involved in this
case could not have been discovered until receipt of
discovery materials, . . . body cam footage, . . . and
Meador's sworn testimony” (emphasis added) is
revealing. The argument is not that plaintiffs were unaware
of their loss, but merely that they did not receive certain
discovery materials supportive of their tort claims until
January 20, 2017. In short, plaintiffs have neither alleged
nor argued that sufficient evidence exists of false,
fraudulent, or misleading conduct on the part of the
defendants, or of an affirmative act of concealment to
exclude suspicion and preclude inquiry, to induce the
plaintiffs from timely giving notice of their tort claim.
Watkins v. Central State Griffin Memorial Hospital,
377 P.3d 124, 132 (Okla. 2016). Accordingly, the partial
motion to dismiss plaintiffs' state tort claims is
court also rejects plaintiffs' argument that imprisonment
itself constitutes a “legal disability” entitling
them to equitable tolling. In so doing, the court takes
judicial notice of the plethora of cases this court receives
from imprisoned individuals, and the dearth of Oklahoma
caselaw supporting plaintiffs' argument.
third and final proposition for partial dismissal, defendant
Moore contends he is immune from suit for plaintiffs'
state law claims in his official capacity. Plaintiffs agree.
See [Doc. 14 at p. 10]. The ...