United States District Court, W.D. Oklahoma
MARK A. PENDERGRAFT, Plaintiff,
BOARD OF REGENTS OF OKLAHOMA COLLEGES, DAVID MISAK, in his individual Capacity, and TODD THURMAN, in his individual capacity. Defendants.
TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE
David Misak and Todd Thurman bring before the Court a Partial
Motion to Dismiss [Doc. No. 38] seeking the dismissal of
Count VI of Plaintiff's Fourth Amended Complaint pursuant
to Fed.R.Civ.P. 12(b)(6). Plaintiff, appearing pro
se, has filed a Response in Opposition [Doc. No. 39].
The matter is now at issue.
facts of the present case are set forth in the Court's
previous Order [Doc. No. 33] granting in part and denying in
part Defendants' Partial Motion to Dismiss [Doc. No. 22].
They will not be restated here. In that Order,
Plaintiff's conspiracy claim (Count VI) was dismissed
with prejudice as to Defendants Board of Regents of Oklahoma
Colleges (“BROC”) and Misak and Thurman in their
official capacity, and dismissed without prejudice as to
Defendants Misak and Thurman in their individual capacities.
See Order, August 13, 2019 [Doc. No. 33]. Plaintiff
was granted leave to amend his conspiracy claim to address
the factual deficiencies identified in the Order. On
September 27, 2019, Plaintiff filed his Fourth Amended
Complaint [Doc. No. 37]. The Fourth Amended Complaint identifies
Count VI as a cause of action for conspiracy under 42 U.S.C.
§ 1983. Defendants Misak and Thurman renewed their
motion to dismiss Plaintiff's conspiracy claim and
contend the Fourth Amended Complaint does not cure the
deficiencies that existed in the prior amended complaint.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain enough facts that, when accepted as true,
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “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.” Iqbal, 556 U.S.
at 678. In assessing plausibility, a court must accept all
well-pleaded factual allegations as true and construe them in
the light most favorable to the plaintiff. Alvarado v.
KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).
However, conclusory allegations are not entitled to the
assumption of truth and courts are free to disregard them.
Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012); see also Iqbal, 556 U.S. at
§ 1983 cases, it is particularly important “that
the complaint make clear exactly who is alleged to
have done what to whom, to provide each
individual with fair notice as to the basis of the claims
against him or her.” Robbins v. Oklahoma, 519
F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original).
Indeed, “it is incumbent upon a plaintiff to
‘identify specific actions taken by particular
defendants' in order to make out a viable § 1983 . .
. claim.” Pahls v. Thomas, 718 F.3d 1210, 1226
(10th Cir. 2013) (quoting Tonkovich v. Kan. Bd. of
Regents, 159 F.3d 504, 532 (10th Cir. 1998)) (emphasis
added by the court in Pahls).
Misak and Thurman move for dismissal of Count VI of the
Fourth Amended Complaint under Rule 12(b)(6), asserting that
Plaintiff has failed to state a claim for conspiracy under
§ 1983. To state a claim for conspiracy under §
1983, a plaintiff must plead facts showing both (1) the
existence of a conspiracy and (2) an actual deprivation of a
constitutional right. Dixon v. City of Lawton, 898
F.2d 1443, 1449 (10th Cir.1990); see also Thompson v.
City of Lawrence, Kan., 58 F.3d 1511, 1517 (10th Cir.
1995). Both elements are required as “pleading and
proof of one without the other will be insufficient.”
Dixon, 898 F.2d at 1449.
pleading the conspiracy element, “a plaintiff must
allege specific facts showing an agreement and concerted
action amongst the defendants.” Tonkovich v. Kansas
Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998).
There must be “a meeting of the minds, an agreement
among the defendants, or a general conspiratorial
objective.” Brooks v. Gaenzle, 614 F.3d 1213,
1227-28 (10th Cir. 2010). “Conclusory allegations of
conspiracy are insufficient to state a valid § 1983
claim.” Tonkovich, 159 F.3d at 533 (quoting
Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.
liberally construed,  Plaintiff's Fourth Amended Complaint
remains devoid of facts sufficient to infer a conspiratorial
agreement amongst Defendants to deprive Plaintiff of a
constitutional right. Like its previous iteration, the Fourth
Amended Complaint alleges Thurman terminated Plaintiff in
order to hire a female assistant coach and that Misak
subsequently made statements supportive of the termination.
Fourth Amended Complaint, ¶¶ 25, 26. The only new
allegation in the Fourth Amended Complaint is that after
terminating Plaintiff, Thurman “advised Plaintiff he
had already spoken with Defendant Misak, and that they were
in total agreement regarding Plaintiff's wrongful
termination.” Id. at ¶ 25. This
“conclusory allegation of agreement at some
unidentified point does not supply facts adequate to show
illegality.” Twombly, 550 U.S. at 557.
Likewise, Plaintiff's assertions that Misak and Thurman
“conspired prior to Plaintiff's termination,
” “worked in concert together, ” and
“hatched a plan…to deprive Plaintiff of his
constitutional, statutory, and common law rights” are
simply conclusory allegations that are not entitled to the
presumption of truth. Plaintiff has failed to allege the
specific facts necessary to show that Defendants Misak and
Thurman reached a “meeting of the minds” or
engaged in concerted action regarding his
Plaintiff has failed to identify any constitutional right
that was violated as a result of the Defendants' alleged
conspiracy. The “essence of a § 1983 claim is the
deprivation of the right rather than the conspiracy.”
Dixon, 898 F.2d at 1449. Plaintiff's failure to
allege the actual deprivation of a constitutional right is
fatal to his claim.
Plaintiff's conspiracy claim as to Misak and Thurman must
be dismissed with prejudice. A dismissal with prejudice is
appropriate because “allowing [Plaintiff] a third
opportunity to re-plead the § 1983 claims-which were
devoid of any specific factual allegations that could support
a plausible claim of conspiracy-would be futile.”
Turnbough v. Wantland, 676 Fed.Appx. 811, 814 (10th
Cir. 2017); see also Breton v. Bountiful City Corp.,
434 F.3d 1213, 1219 (10th Cir. 2006) (“A