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Taylor v. City of Claremore

United States District Court, N.D. Oklahoma

July 31, 2019

SHELLY R. TAYLOR, f/k/a Shelly R. Madison, Plaintiff,
CITY OF CLAREMORE, a political subdivision and municipal corporation; JAMES THOMAS, individually; and FELICIA HENSON, f/k/a/ FELICIA BURNETT, individually, Defendants.



         Before the court are three motions: the Motion to Dismiss [Doc. 39');">39] filed by defendant James Thomas; the Motion to Dismiss [Doc. 40] filed by defendant City of Claremore; and the Motion to Dismiss [Doc. 43] filed by defendant Felicia Henson.

         I. Background

         A. Procedural History

         On April 27, 2018, plaintiff Shelley R. Taylor filed a state district court petition in Rogers County, Oklahoma, asserting twelve causes of action against three defendants-the City of Claremore, James Thomas, and Tulsa Federal Credit Union (“TFCU”). [Doc. 2-1]. On May 7, 2018, plaintiff filed an amended petition. [Doc. 2-5]. Defendants City of Claremore and James Thomas then removed the action to this court, and plaintiff voluntarily dismissed her claims against TFCU. [Doc. 30].

         On plaintiff&#39');">39;s motion, the court granted her leave to file a second amended complaint adding a new claim against Felicia Henson for Fourth Amendment malicious prosecution pursuant to 42 U.S.C. § 1983. [Doc. 34]. Plaintiff then filed the Second Amended Complaint, and the court struck new claims asserted therein against Henson for false imprisonment, invasion of privacy, abuse of process, civil conspiracy, and malicious prosecution under state law because those claims fell outside the scope of the leave previously sought by plaintiff and granted by the court. [Doc. 36]. Defendants now move to dismiss all remaining claims asserted in the Second Amended Complaint.

         B. Allegations in the Second Amended Complaint

         The Second Amended Complaint contains the following allegations. Defendant Thomas was Town Administrator for Kingston, Massachusetts. [Doc. 35 ¶ 12]. Following a complaint of gender discrimination, he was placed on administrative leave in June 2012 and resigned in July 2012. [Id.]. In November 2012, the City of Claremore hired Thomas as its city manager. [Id.].

         Claremore is a governmental entity under the Oklahoma Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51, § 151 et seq. [Id. ¶ 2]. In 2014, Claremore began using smart meters to read residents&#39');">39; electricity usage. [Id. ¶ 6]. Plaintiff, who is a Claremore resident, became a vocal opponent of increased utility rates and advocated to Claremore on behalf of residents. [Id. ¶¶ 1, 8]. Plaintiff organized a community meeting, maintained a Facebook blog, discussed the matter with media outlets, and caused a state legislator to contact Thomas about the issues. [Id. ¶¶ 8, 29].

         On August 26, 2015, plaintiff wrote a check to Claremore to pay a utility bill. [Id. ¶ 14]. Felicia Henson, the utility office manager for Claremore, allegedly agreed that Claremore would hold the check for four days before depositing it. [Id.]. Plaintiff and Henson reached this agreement to avert plaintiff&#39');">39;s utilities being disconnected due to her difficulty in paying the bill. [Id.]. The next day, August 27, 2015, Claremore deposited the check, which was declined. [Id. ¶ 21]. Claremore immediately disconnected plaintiff&#39');">39;s utilities. [Id.]. The check was recorded as returned on September 3, 2015, and plaintiff remitted cash to pay Claremore the amount due within twenty-four hours. [Id. ¶ 14].

         After the check was returned, Claremore referred the matter to the Claremore Police Department. [Id. ¶ 22]. Specifically, Henson sent a fax or e-mail to the Rogers County District Attorney&#39');">39;s Office containing documents pertaining to plaintiff, her account, and the alleged bogus check. [Id.]. Henson also e-mailed the documents in a shared file to defendant Thomas. [Id.]. Henson did not tell the Claremore police or the Rogers County District Attorney about the agreement to hold the check for four days. [Id.].

         In October 2015, the Claremore Police Department, at the behest of Thomas, went to plaintiff&#39');">39;s bank and requested information regarding plaintiff&#39');">39;s account. [Id. ¶ 25]. The bank falsely asserted that plaintiff&#39');">39;s account was closed. [Id.]. On October 28, 2015, a warrant was issued for plaintiff&#39');">39;s arrest, and she surrendered for booking. [Id. ¶ 23]. Plaintiff was charged with false pretenses/bogus check/con game, a felony in violation of Okla. Stat. tit. 21, § 1541.2. [Id. ¶ 24]. The affidavit for probable cause did not mention the agreement to hold the check. [Id. ¶ 37]. On August 19, 2016, the criminal case came on for preliminary hearing, and the Rogers County District Court sustained plaintiff&#39');">39;s demurrer, finding a lack of probable cause. [Id. ¶ 31].

         Additionally, defendant Thomas disparaged plaintiff on various occasions. [Id. ¶ 29]. Specifically, in September 2015, Thomas returned a call to a Claremore resident who had concerns about utility rates. [Id.]. Thomas questioned whether the resident knew plaintiff and told the resident that plaintiff&#39');">39;s utilities had been disconnected because she was fifteen days past due, and that plaintiff wrote a check on a closed account. [Id.]. In October 2015, Thomas discussed plaintiff&#39');">39;s personal information with another resident and questioned plaintiff&#39');">39;s integrity. [Id.]. In November 2015, Thomas directed his management members when complimented by a customer to “[b]e careful she is a proud supporter of Shelly Taylor . . . this could be a trap. She is militant and not a smart meter supporter.” [Id.]. In August 2016, Thomas disparaged plaintiff in an e-mail to Claremore&#39');">39;s mayor when he referred to plaintiff as committing a felony, notwithstanding his knowledge that the criminal case had been dismissed. [Id.]. In April 2018, Thomas was questioned by the media and falsely stated that plaintiff had “committed perjury.” [Id. ¶ 16].

         II. Legal 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 can be granted. A complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 50');">50 U.S. 544');">550');">50 U.S. 544, 570 (2007). The plausibility requirement “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of the conduct necessary to make out the claim. Id. at 556. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court “must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)).

         III. Discussion

         The Second Amended Complaint asserts thirteen claims: (1) malicious prosecution under 42 U.S.C. § 1983 as to Thomas, Henson, and Claremore; (2) unlawful retaliation under 42 U.S.C. § 1983 as to Thomas and Claremore; (3) municipal liability as to Claremore; (4) intentional infliction of emotional distress as to Thomas; (5) false imprisonment as to Thomas; (6) false arrest as to Claremore; (7) invasion of privacy as to Thomas; (8) abuse of process as to Thomas; (9) civil conspiracy as to Thomas; (10) malicious prosecution under state law as to Thomas; (11) false light invasion of privacy as to Thomas; (12) defamation as to Thomas; and (13) breach of contract as to Claremore. The court addresses each of these counts in turn.

         A. Count 1-Malicious Prosecution under 42 U.S.C. § 1983

         In Count 1, plaintiff asserts a § 1983 claim for malicious prosecution against defendants Thomas, Henson, and Claremore. Section 1983 provides that a person acting under color of state law who “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. “The Fourth Amendment provides one source of rights enforceable in a § 1983 action.” Margheim v. Buljko, 855 F.3d 1077, 1084 (10th Cir. 2017). “Unreasonable seizures imposed with legal process precipitate Fourth Amendment malicious-prosecution claims.” Id. at 1085 (quoting Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013)).

         Tenth Circuit precedent recognizes five elements for a Fourth Amendment malicious-prosecution claim under § 1983:

(1) the defendant caused the plaintiff&#39');">39;s continued confinement or prosecution;
(2) the original action terminated in favor of the plaintiff;
(3) no probable cause supported the original arrest, continued confinement, or prosecution;
(4) the defendant acted with malice; and
(5) the plaintiff sustained damages.

Margheim, 855 F.3d at 1085.

         Defendants argue that plaintiff fails to state a claim because (1) probable cause supported plaintiff&#39');">39;s arrest; (2) plaintiff fails to allege Henson was acting under color of law; and (3) plaintiff fails to allege facts sufficient to establish municipal liability as to the City of Claremore. The court addresses these arguments in turn.

         1. Probable Cause

         Plaintiff contends that certain information omitted from the probable cause affidavit vitiated probable cause. “Probable cause exists if the facts and circumstances are sufficient to warrant a person of reasonable caution to believe a crime has been committed.” McCarty v. Gilchrist, 646 F.3d 1281, 1286 (10th Cir. 2011). If evidence was withheld, the probable cause determination is made by considering whether, including the withheld exculpatory evidence, probable cause existed to prosecute. Id.

         Plaintiff was arrested and charged with violation of Okla. Stat. tit. 21, § 1541.2, which requires, among other things, that the person accused acted with “intent to cheat and defraud.” See Okla. Stat. tit. 21, § 1541.1; Okla. Uniform Jury Instructions-Criminal 5-39');">39. Plaintiff alleges that she reached an agreement with Claremore, through Henson, that Claremore would hold plaintiff&#39');">39;s check for four days before depositing it. Plaintiff further alleges that the probable cause affidavit used to secure the arrest warrant failed to mention this agreement. Inclusion of information about the agreement could have vitiated probable cause by negating the essential element of intent to cheat and defraud.[1] Accepting the factual allegations in the proposed Second Amended Complaint as true and construing them in the light most favorable to plaintiff, the court concludes that plaintiff has adequately alleged that her arrest and prosecution were not supported by probable cause.

         2. Color of Law

         To state a claim under § 1983, a plaintiff must allege a deprivation of a federally protected right by a person acting “under color of any statute, ordinance, regulation, custom, or usage of any State . . . .” 42 U.S.C. § 1983. “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1156 (10th Cir. 2016) (quoting Haines v. Fisher, 50');">503');">82 F.3d 150');">503, 150');">508 (10th Cir. 1996)).

         Generally, “a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” West v. Atkins, 48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">487 U.S. 42');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">487 U.S. 42, 50');">50 (1988). However, “there are some circumstances where a tort by a state employee simply may not have been committed on account of the authority vested in the employee by the state.” Jojola v. Chavez, 48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">488');">55 F.3d 48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">488, 493 (10th Cir. 1995). “[I]t is the plaintiff&#39');">39;s burden to plead, and ultimately establish, the existence of ‘a real nexus&#39');">39; between the defendant&#39');">39;s conduct and the defendant&#39');">39;s ‘badge&#39');">39; of state authority in order to demonstrate action was taken ‘under color of state law.&#39');">39;” Id. at 494.

         Here, plaintiff asserts that “Henson was acting under color of law in that she was the Utility Manager for the City of Claremore and acting in such capacity.” [Doc. 35 ¶ 22]. Based upon the allegations in the Second Amended Complaint, the court can draw the reasonable inferences that Henson accepted plaintiff&#39');">39;s check and advised plaintiff regarding the same while acting in her capacity as Claremore&#39');">39;s utility manager and that Henson reported information about plaintiff&#39');">39;s declined check to the Rogers County District Attorney&#39');">39;s office and to Thomas in her official capacity, not in her private capacity. These inferences are supported by, among other things, the allegation that Henson used her public e-mail to send documents regarding plaintiff to defendant Thomas. [Id.].

         Defendants cite the Tenth Circuit&#39');">39;s decision in Schaffer, 814 F.3d at 1153. In that case, a woman sued two parking enforcement officers for malicious prosecution under § 1983, alleging that the officers falsely reported to the police that the woman hit them with her truck after they issued her a parking ticket. 814 F.3d at 1153. Although the incident occurred while the officers were performing their duties as city employees, the Tenth Circuit held that the woman failed to establish the requisite nexus between the officers&#39');">39; alleged misconduct and their authority to write parking tickets, as “any citizen can report suspicious activity to the police and repeat that testimony in court.” Id. at 1156.

         Schaffer appears distinguishable. In Schaffer, the Tenth Circuit determined on a summary judgment record that “the parking officers, although employed by the City, acted in their private capacities when reporting and testifying against Schaffer.” Id. at 1157. Here, plaintiff&#39');">39;s factual allegations, if true, support a reasonable inference that Henson acted in her official capacity and misused her authority as utility manager when she falsely advised plaintiff that Claremore would hold the check for four days before depositing it and when she reported the declined check to law enforcement without disclosing the agreement to hold the check. Accordingly, plaintiff has adequately alleged the existence of a real nexus between Henson&#39');">39;s conduct and her “badge” of public authority. Accepting the factual allegations in the proposed Second Amended Complaint as true and construing them in the light most favorable to plaintiff, the court concludes plaintiff has adequately alleged that Henson was acting under color of law.

         3. Municipal Liability

         A municipality cannot be held liable under § 1983 solely because it employs a tortfeasor. Monell v. D e p &#39');">39;t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). “Rather, a plaintiff must establish that (1) a policy or custom of the municipality exists and (2) the policy or custom caused the constitutional violation.” Rife v. Oklahoma Dep&#39');">39;t of Pub. Safety, 854 F.3d 637, 653 n.11 (10th Cir.) (citing Kramer v. Wasatch Cty. Sheriff&#39');">39;s Office, 743 F.3d 726, 758 (10th Cir. 2014)). To establish municipal liability, “a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Bd. of Cty. Comm&#39');">39;rs of Bryan Cty., Okl. v. Brown, 39');">397');">520 U.S. 39');">397, 404 (1997).

         A municipal policy or custom may take the form of (1) a formal regulation or policy statement (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions-and the basis for them- of subordinates to whom authority was delegated subject to these policymakers&#39');">39; review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused. Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010). Plaintiff argues that she has stated a claim against Claremore for municipal liability “under all avenues except formal based policy.” [Doc. 48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48');">48, p. 13]. The court addresses plaintiff&#39');">39;s various theories of municipal liability below.

         i. Informal Custom

         Plaintiff alleges that municipal liability is based on “the unlawful policy of Claremore wherein Claremore police requested personal and confidential records without a warrant or court order.” [Doc. 35 ¶ 40]. Plaintiff alleges only a single instance in which Claremore police obtained bank account information without a warrant. Plaintiff fails to allege any facts showing that this “policy” amounted to “a widespread practice that . . . is so permanent and well settled as to constitute a custom or usage with the force of law.” Bryson, 627 F.3d at 788. Moreover, plaintiff fails to allege a direct causal link between this “policy” and any constitutional injuries she suffered.

         ii. ...

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