United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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).
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
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 ...