United States District Court, W.D. Oklahoma
TROY D. GERMAN, Plaintiff,
BILLY D. “RUSTY' RHOADES, Individually, et al., Defendants.
STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE
action alleges civil rights claims under 42 U.S.C. §
1983 against four defendants, all of whom are sued in their
individual capacities only, and all of whom move to dismiss
this action under Rule 12(b)(6), Fed.R.Civ.P. Doc. no. 9.
Plaintiff has responded, objecting to dismissal. No. reply
brief was filed. The motion will be denied for the reasons
inquiry under Rule 12(b)(6) is whether the complaint contains
enough facts to state a claim for relief that is plausible on
its face. Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir., 2007), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007). To survive a motion to dismiss, a plaintiff must
nudge his claims across the line from conceivable to
plausible. Id. The 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, 493 F.3d at 1177. In
conducting its review, the court assumes the truth of the
plaintiff's well-pleaded factual allegations and views
them in the light most favorable to the plaintiff.
Id. Pleadings that are no more than legal
conclusions are not entitled to the assumption of truth;
while legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
Ashcroft v. Iqbal, 556 U.S.662, 664 (2009). When
there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief. Id.
The court will disregard mere “labels and
conclusions” and “[t]hreadbare recitals of the
elements of a cause of action” to determine if what
remains meets the standard of plausibility. Twombly,
550 U.S. at 555; Iqbal, 556 U.S. at 678.
“Determining whether a complaint states a plausible
claim for relief will … be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
defendants' arguments assert qualified immunity as a
basis for dismissal. When qualified immunity is raised at the
Rule 12(b)(6) stage, it is the defendant's conduct as
alleged in the complaint that is scrutinized. See,
Doe v. Woodard, 912 F.3d 1278, 1288 (10th
Cir. 2019), citing Behrens v. Pelletier, 516 U.S.
299, 309 (1996). Thus, it is the pleadings, not the evidence
or the actual facts, that determine the issue. Moreover, when
a defendant asserts qualified immunity at the pleadings
stage, the court must allow plaintiff an opportunity to come
forward with either alleged facts, or proposed amended
factual allegations, which show both that the defendant's
alleged conduct violated the law, and that the law in
question was clearly established when the alleged violation
occurred. Pueblo Neighborhood Health Centers,
Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.
1988). Unless such a showing is made, the
defendant prevails on his qualified immunity defense.
Id. Relying on generalizations or on the broad
history of a constitutional amendment or statute is
insufficient for determining that a right is clearly
established. See, Ashcroft v. Al-Kidd, 563
U.S. 731, 742 (2011) (“We have repeatedly told courts
… not to define clearly established law at a high
level of generality. … The general proposition, for
example, that an unreasonable search or seizure violates the
Fourth Amendment is of little help in determining whether the
violative nature of particular conduct is clearly
of the Complaint
is Troy D. German, who is alleged to have retired from the
Oklahoma Highway Patrol (OHP) at the rank of Captain.
are Billy D. “Rusty” Rhoades, who allegedly
resigned (in lieu of termination) from his position as
Commissioner of the Department of Public Safety (DPS);
Michael Harrell, who allegedly resigned (in lieu of
termination) from his position as Chief of the OHP; Brian
Orr, who allegedly remains employed as a Captain in the OHP;
and Megan Simpson, who is alleged to have resigned (in lieu
of termination) from her position as General Counsel and
Chief of Administration with DPS. Doc. no. 1, ¶¶
First Amended Complaint (doc. no. 3, hereafter
“complaint”) alleges four § 1983 claims: 1)
retaliatory prosecution in violation of the First Amendment
to the United States Constitution; 2) abuse of process in
violation of the Fourth Amendment to the United States
Constitution; 3) malicious prosecution in violation of the
Fourth Amendment to the United States Constitution; and 4) a
civil conspiracy to bring false blackmail charges against the
plaintiff. All four claims are alleged against all four
claims are based on allegations regarding a cheating scheme
within OHP which helped Orr attain the rank of Captain,
followed by defendants' falsification and fabrication of
evidence in order to bring a false blackmail charge against
plaintiff after plaintiff reported the cheating scheme to
persons inside and outside OHP.
to the complaint, Orr was given information about questions
he would be asked during interviews for the position of
Captain. The complaint alleges that Rhoades called Orr in the
presence of Harrell, after which Rhoades handed the phone to
Harrell who then provided Orr with four questions Orr would
be asked during a board interview for a Troop A Captain
position. Doc. no. 3, ¶¶27-40. The complaint also
alleges that Rhoades provided Orr with the questions and
answers for purposes of a board interview for a Troop R
Captain position. Id., ¶ 59.
complaint alleges Orr told plaintiff about the information he
had received regarding the Troop A board interview, including
Harrell's involvement in the cheating scheme.
Id., ¶¶ 41, 44, 49. The complaint alleges
numerous communications or meetings in which plaintiff
brought the alleged cheating scheme to the attention of
people within the agency (some of whom were allegedly
involved in the scheme) in an effort to effect positive
change at OHP, as well as meetings plaintiff had with the
OSBI and members of the state legislature in which the
cheating scheme was discussed. See, e.g.,
Id., ¶¶ 50, 51, 56, 61, 65, 68, 71, 74.
complaint alleges that after plaintiff reported the cheating
scheme, Rhoades and Simpson concocted a false story, claiming
plaintiff had been involved in blackmailing Rhoades. The
complaint alleges this was an effort to discredit
plaintiff's contentions about the cheating scheme and
also to save Rhoades' career. Id., ¶ 85.
The complaint alleges that after Simpson told Harrell that
plaintiff had blown the whistle on the cheating, Rhoades,
Harrell and Simpson agreed to participate in a conspiracy
against plaintiff, by which they would contend that plaintiff
had attempted to extort or blackmail Rhodes. Id.,
¶ 89. The complaint alleges that Rhoades, Harrell and
Simpson also met with Orr to coordinate their false stories.
Id., ¶ 90. The complaint alleges that Rhoades,
Harrell and Orr made false statements to investigators, to
Governor-elect Stitt, and to others. Id.,
¶¶ 91-100. The complaint alleges that Orr repeated
these false statements to Stitt and others, and also repeated
the false statements in sworn testimony. Id., ¶
complaint alleges that Rhoades, Harrell and Simpson met with
District Attorney David Prater and that Rhoades described his
allegations of blackmail against plaintiff to Prater, after
which Prater stated he believed Rhoades was lying and that
the only potential criminal acts he had heard in Rhoades'
description of events was that of Rhoades and Harrell.
Id., ¶¶ 105-108. The complaint alleges
that Rhoades asked Prater to file blackmail charges against
plaintiff, and that Simpson stated the allegations clearly
met the definition of blackmail. Id., ¶¶
111-113. The complaint alleges that Prater stated that if
Rhoades believed he was being blackmailed, Rhoades should
have the matter investigated and that after the investigation
Prater would review it to consider whether plaintiff had
committed any criminal acts. Id., ¶ 118. The
complaint alleges that after the meeting, Prater contacted
the Oklahoma Attorney General's Office and advised that
they should be skeptical of any potential charges brought by
OHP against plaintiff. Id., ¶ 121.
complaint alleges that during this time plaintiff was in the
process of interviewing for the position of Director of the
Oklahoma Department of Emergency Management. The complaint
alleges that on the day before plaintiff was to interview
with Governor-elect Stitt, OHP executed multiple search
warrants based on the false accusations of blackmail.
Id., ¶¶ 122-25. The complaint alleges that
plaintiff's property and records were seized and that OHP
members conducted several custodial interrogations of
plaintiff. Id., ¶¶ 126-28. The complaint
alleges that OHP seized and detained plaintiff without an
arrest warrant and without probable cause to justify an
arrest. Id., ¶ 129.
complaint alleges that after Prater declined to file charges
against plaintiff, defendants Rhoades, Harrell and Simpson
prevailed upon the Oklahoma Attorney General to use the
multi-county grand jury to investigate plaintiff's
purported blackmail. Id., ¶ 130. The complaint
alleges that plaintiff was indicted on one count of
“extortion/blackmail, ” following which plaintiff
was taken to the Oklahoma County Detention Center.
Id., ¶¶ 131-33. The complaint alleges that
the indictment was dismissed and ...