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German v. Rhoades

United States District Court, W.D. Oklahoma

December 9, 2019

TROY D. GERMAN, Plaintiff,
v.
BILLY D. “RUSTY' RHOADES, Individually, et al., Defendants.

          ORDER

          STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE

         This 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 stated below.

         Standards

         The 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.

         Some of 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).[1] 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 established.”)

         Summary of the Complaint

         Plaintiff is Troy D. German, who is alleged to have retired from the Oklahoma Highway Patrol (OHP) at the rank of Captain.

         Defendants 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, ¶¶ 1-5.

         The 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 defendants.

         The 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.

         According 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.

         The 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.

         The 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., ¶ 100.

         The 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.

         The 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.

         The 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., ΒΆΒΆ 131-33. The complaint alleges that the indictment was dismissed and ...


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