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Morris v. City of Tulsa

United States District Court, N.D. Oklahoma

December 31, 2019

JACK TALBOT MORRIS, Plaintiff,
v.
CITY OF TULSA, JOSHUA E. DUPLER, ANTHONY FIRST, and KURT DODD, Defendants.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE

         Now before the Court is Defendants Joshua Dupler, Anthony First, and Kurt Dodd's Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. # 29). The individual defendants argue that they are entitled to qualified immunity from plaintiff Jack Talbot Morris' claims under 42 U.S.C. § 1983, and they also assert that plaintiff has failed to state a claim upon which relief can be granted under state or federal law. Dkt. # 29.

         I.

         On August 16, 2017, Tulsa Police Department (TPD) Officers Joshua Dupler, Anthony First, and Kurt Dodd were attempting to arrest two suspects who had stolen a van, which was found in the area near 4900 South Harvard Avenue in Tulsa, Oklahoma. Dkt. # 28, at 2. The officers arrested one of the suspects, Antonio Luna, but the driver fled on foot into a nearby neighborhood. Id. at 3. TPD officers set up a perimeter of the area, including a pasture and barn owned by Morris. Id. at 3. Morris states that he uses the barn to stable his horses, including a gray horse that he had recently purchased for roping competitions. Id. He claims that the presence of TPD officers spooked the horse. Id. A neighbor called Morris and told him that his horse was acting frantically, and Morris went to the barn to check on his horse. Id.

         Morris alleges that TPD Officer Edmund Parrish arrived at a gas station several hundred yards south of the barn and saw the fleeing suspect. Id. Parrish pursued the suspect past the barn and into a parking lot, and Morris claims that Parrish did not see the suspect enter the barn. Id. Morris claims that he arrived at the barn just behind First, and he drove past First up a street leading to the barn. Id. Morris alleges that several TPD officers had already searched the barn before he arrived. Id. Morris exited his vehicle, unlocked the gate, and proceeded to the barn to calm his horse. Id. at 4. Dodd and First commanded Morris to step through the gate and leave the barn, and Morris states that he complied with the order while explaining that he needed to calm his horse. Id. TPD Officer Brent Williams brought a K-9 unit and searched the barn while Morris and First were talking, and Williams announced that the barn was clear. Id.

         Morris claims that he was standing outside the gate in compliance with an order from the officers when First lunged at him. Id. First attempted to grab Morris' shirt, but he slipped and fell. Id. Morris turned and walked back toward the gate, and First deployed OC spray from about 10 to 15 feet away. Id. The OC spray hit Morris on the head and face, and First knocked Morris onto the ground as Morris was attempting to wipe the spray out of his eyes. Id. at 5. Morris claims that he was on his stomach yelling “I'm done” when Dodd jumped onto Morris' back, fracturing Morris' elbow. Id. First and perhaps another TPD officer were also on top of Morris while he continued to yell “I'm done, ” and Dupler jumped onto Morris' back and began punching Morris in the face. Id. Morris claims that the officers were already on notice that the suspect was not in the barn and they were contacted by radio with information that the suspect was in a nearby parking lot under a car. Id. at 5-6.

         Morris was transported to a hospital, where he was treated for a laceration above his eye, a fractured left elbow and two orbital fractures, a broken nose, and many bruises and contusions. Id. at 6. After Morris was treated, he was transported to the Tulsa County Jail and booked on two charges of felony assault and battery on a police officer and misdemeanor charges of resisting arrest and obstructing a police officer. Id. The state of Oklahoma filed a criminal information charging Morris with felony counts of assault and battery upon a police officer and assault on a police officer, and misdemeanor counts of obstructing an officer and resisting an officer. Id. at 8. Morris subsequently pled guilty to the misdemeanor charges, but he claims that he was not provided exculpatory evidence concerning the validity of his arrest before he changed his plea. Id.

         On August 14, 2018, Morris filed this case in Tulsa County District Court alleging state law claims of assault and battery, negligence, and a claim for relief under 42 U.S.C. § 1983 based on the use of excessive force by the police officers who arrested him. Dkt. # 2-1, at 9-20. Defendants removed the case to this Court, and plaintiff sought leave to file an amended complaint. Dkt. # 26. Plaintiff filed an amended complaint adding a claim under § 1983, alleging that he was unlawfully arrested in violation of the Fourth Amendment. Dkt. # 28. Dupler, First, and Dodd have filed a motion to dismiss the amended complaint on the grounds that they are entitled to qualified immunity from plaintiff's § 1983 claims and that plaintiff has failed to state a claim upon which relief can be granted. Dkt. # 29.

         II.

         In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no “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). A complaint must contain 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. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided within an antitrust context, Twombly “expounded the pleading standard for all civil actions.” Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).

         III.

         Dupler, First, and Dodd argue that they are entitled to qualified immunity from plaintiff's § 1983 claims, because plaintiff cannot show that his constitutional rights were violated or that the law supporting the alleged constitutional violations was clearly established. Dkt. # 29. Plaintiff responds that defendants are improperly using a motion to dismiss to dispute the allegations contained in the amended complaint, and that defendants are not entitled to qualified immunity based on the facts alleged in the amended complaint. Dkt. # 37. Plaintiff has alleged two § 1983 claims against Dupler, First, and Dodd. Plaintiff alleges that the defendants used excessive force to arrest him in violation of the Fourth Amendment (third claim for relief), and that defendants unlawfully arrested him having probable cause to believe that he had committed a crime (eighth claim for relief).

         The Court will initially address whether it can consider evidence outside the pleadings in ruling on the motion to dismiss. Defendants ask the Court to consider deposition testimony that allegedly contradicts certain allegations of the amended complaint. Dkt. # 29, at 3. A district court must ordinarily convert a motion to dismiss into a motion for summary judgment if the parties request that the court consider evidence outside of the pleadings. GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). However, a district court may consider a document that is referred to in the complaint and is central to plaintiff's claims, even if a copy of the document has not been attached to the complaint. Id. The Court declines to consider evidence outside the pleadings in ruling on defendants' motion to dismiss. Defendants have cited no authority suggesting that deposition transcripts qualify as a “document, ” and the Court finds that it would be improper to allow defendants to rebut the allegations of the complaint with selective and self-serving evidence. Cohen v. Lockwood, 2003 WL 21384313 (D. Kan. June 12, 2003) (declining to consider deposition testimony because purpose of motion to dismiss is merely to test the allegations of the complaint). The limited class of cases in which evidence outside the complaint can be considered in ruling on a motion to dismiss typically involves a contract or insurance action where the contents of the document are undisputed and the parties agree that the document is central ...


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