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Wade v. City of Tulsa

United States District Court, N.D. Oklahoma

August 9, 2019

RONALD G. WADE, JR., Plaintiff,
v.
CITY OF TULSA, et al. Defendants.

          OPINION AND ORDER

          JOHN E. DOWDELL CHIEF JUDGE

         I. Plaintiff's Claims

         In his Amended Complaint (Doc. 4), the plaintiff asserts claims under 42 U.S.C. § 1983 and state tort claims against the City of Tulsa and Officer Don Deramus of the Tulsa Police Department (TPD). The plaintiff alleges that his constitutional rights under the Fourth and Fourteenth Amendments were violated when Officer Deramus took plaintiff into protective custody upon allegations that he threatened a Tulsa attorney, Jason Robertson, and his family.[1]

         Plaintiff asserts that his detention was without probable cause, premised upon manufactured evidence, and resulted in his detention in mental health facilities for 34 days. (Doc. 4 at 15). The plaintiff alleges that his detention was the result of a Peace Officer's Statement for Protective Custody (Doc. 4 at 23), completed by TPD Officer Deramus. The plaintiff isolates one particular sentence in Officer Deramus's Statement, which provides: “Ron Wade began to sent [sic] Robertson emails that stated he knows where Robertsons [sic] lives and what his family looks like.” (See Doc. 4 at 3, 23). Plaintiff alleges that sentence was a “falsified threat” that was “inserted” by Deramus “so the Plaintiff could be picked up . . . as representing a clear threat to the well being of Mr. Robertson and his family.” (Doc. 4 at 3).

         In support of his § 1983 claim against Officer Deramus, the plaintiff also alleges that, when he was taken into protective custody, he asked Officer Deramus for the justification for his detention, and Officer Deramus refused to provide the Peace Officer's Statement to him, in violation of Okla. Stat. tit. 43A, § 5-207. That statute provides that “[t]he officer shall give a copy of the [peace officer's] statement to the person or the person's attorney upon the request of either.” (See Doc. 4 at 8 [alleging a violation of § 5-207(C)]). After Deramus transported the plaintiff to the Tulsa Center for Behavioral Health (TCBH), the intake doctor there permitted the plaintiff to read Deramus's statement. (Id.).

         In his Third Cause of Action, plaintiff alleges that Officer Deramus, along with attorney Jason Robertson, violated § 1983 by causing a continued prosecution and threat of confinement of the plaintiff. (See Id. at 17). As part of his Sixth Cause of Action under the Oklahoma Governmental Tort Claims Act, plaintiff also references a violation of the Fourteenth Amendment to the United States Constitution because Officer Deramus transported plaintiff to a mental facility “where it was customary to immediately control patients with psychiatric drugs.” (Id. at 20).

         For his § 1983 claim against the City of Tulsa, plaintiff asserts that “the only ‘duty of care' for the City of Tulsa was to produce a single email containing the base threat [against the Tulsa attorney], that should have been possessed by Officer Deramus, all along.” (Doc. 4 at 16). Plaintiff further alleges in conclusory fashion that the City “maintained and permitted an official and custom of permitting the occurrence of the types of wrongs set forth herein above and hereafter, ” and had a “policy of allowing arrests without probable cause and failing to obtain pertinent exculpatory and inculpatory evidence.” (Doc. 4 at 16). Plaintiff further alleges that the City's “policies and customs include the deliberate indifference in the training of it's [sic] officers in making lawful detentions, ” “express and/or tacit encouragement and acceptance of detentions/arrests without probable cause, the ratification of police misconduct, and the failure to conduct adequate investigation of police misconduct, such that future violations do not occur.” (Id.). Regarding causation, plaintiff asserts that he is “informed and believes . . . that the customs and policies were the moving force behind the violations of Plaintiff's rights.” (Id.). The Ame nded Complaint also alleges tort claims for negligence, malicious prosecution, and assault by officers against the City of Tulsa. (Id. at 19-20).

         The defendants have moved to dismiss (Doc. 9, 29). The plaintiff filed responses (Doc. 13, 30).

         II. Applicable Dismissal Standards

         To survive dismissal for failure to state a claim, the complaint must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The standard requires “enough facts to state a claim to relief that is plausible on its face, ” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. at 555-56, 570 (citations omitted).

         Plaintiff is proceeding pro se. While pro se pleadings must be liberally construed and must be held to less stringent standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), a district court should not assume the role of advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009); Garret v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Moreover, even pro se plaintiffs are required to comply with the “fundamental requirements of the Federal Rules of Civil and Appellate Procedure” and substantive law, and the liberal construction to be afforded does not transform “vague and conclusory arguments” into valid claims for relief. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). 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.” Whitney v. New Mexico, 113 F.3d 1170, 1173-1174 (10th Cir. 1997).

         III. Claims Against Officer Deramus

         A. Section 1983 Claims

         1. Duplicative “Official Capacity” Claim Against Officer Deramus

         Officer Deramus first notes that the plaintiff purports to include him as a defendant both “individually and in his official capacity.” (Doc. 29 at 4; See Doc. 4 at 1). A suit against an official in his or her official capacity is the same as asserting a claim against the municipality the official represents and is considered under the standards applicable to 42 U.S.C. § 1983 claims against municipalities. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”). Because plaintiff has also named the City as a defendant, and standards governing municipal liability apply to that claim just as they apply to an official capacity claim, any official capacity suit against Officer Deramus is duplicative and should be dismissed.

         2. Qualified Immunity

         Officer Deramus asserts qualified immunity. (Doc. 29 at 6-10). Where qualified immunity is raised at the dismissal stage, the Court must accept all well-pleaded allegations as true and view them in a light most favorable to the plaintiff. See Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012). “To survive a motion to dismiss based on qualified immunity, the plaintiff must allege sufficient facts that show - when taken as true - the defendant plausibly violated [plaintiff's] constitutional rights, which were clearly established at the time of the violation.” Id. (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008)). “When a defendant asserts qualified immunity, . . . the burden shifts to the plaintiff to establish (1) a violation of a constitutional right (2) that was clearly established.” Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). This is a “‘heavy, two-part burden' that the plaintiff must meet, ” and “[f]ailure on either element is fatal to the plaintiff's claims.” Id. (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)).

         “The plaintiff bears this heavy burden because we presume that law enforcement officers ‘are immune from lawsuits seeking damages for conduct they undertook in the course of performing their jobs.'” Puller, 781 F.3d at 1196 (quoting Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011)). The courts have discretion to determine “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         a. Alleged Constitutional Violation

         Here, the plaintiff contends that his constitutional rights were violated by Officer Deramus's Statement for Protective Order, which allegedly contained a false statement. The plaintiff also argues that the “core issue” in this case “is whether probable cause can legally exist.” (Doc. 30 at 1). Under the language of the applicable Oklahoma statute, “[a]ny peace officer who reasonably believes that a person is a person requiring treatment as defined in Section 1-103 of this title shall take the person into protective custody.” Okla. Stat. tit. 43A, § 5-207(B)(1). “‘Person requiring treatment' means a person who because of his or her mental illness . . . has placed another person or persons in a reasonable fear of violent behavior directed towards such person or persons or serious physical harm to them as manifested by serious and immediate threats.” Id., § 1-103(13)(a)(3). Upon the reasonable belief that a person meets that ...


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