Maher v. Oklahoma ex rel. Oklahoma Tourism & Recreation Dep't

• Decision Date: 29 February 2016
• Docket Number: Case No. CIV-15-264-D
• Citation: 165 F.Supp.3d 1089
• Court: U.S. District Court — Western District of Oklahoma
• Parties: Roger T. Maher, as Personal Representative of the Estate of David Maher, Plaintiff, v. State of Oklahoma ex rel. Oklahoma Tourism & Recreation Department, et al., Defendants.

165 F.Supp.3d 1089

Roger T. Maher, as Personal Representative of the Estate of David Maher, Plaintiff,

v.State of Oklahoma ex rel. Oklahoma Tourism & Recreation Department, et al., Defendants.

Case No. CIV-15-264-D

United States District Court, W.D. Oklahoma.

Signed February 29, 2016

Rick W. Bisher, Ryan Bisher Ryan, Oklahoma City, OK, for Plaintiff.

Charles Dickson, III, Jeb E. Joseph, Kari Y. Hawkins, Oklahoma City, OK, for Defendants.

ORDER

TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Justin Young's Motion to Dismiss [Doc. No. 25], filed pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6).¹ Regarding subject matter jurisdiction, Defendant Young asserts the State of Oklahoma's sovereign immunity from suit to the extent he is sued in an official capacity as a state law enforcement officer, and individual immunity from suit under the Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51, §§ 151 -72. Regarding the sufficiency of Plaintiff's pleading to state a claim for relief, Defendant Young contends the complaint contains insufficient factual allegations: 1) to state a plausible claim under 42 U.S.C. § 1983 for using excessive force in violation of the constitutional rights of David Maher, based on either an initial use of pepper spray or a subsequent use of deadly force; 2) to overcome Defendant Young's qualified immunity from suit under § 1983 ; and 3) to state a plausible negligence claim that can be brought against Defendant Young individually, despite the GTCA, due to conduct outside the scope of his employment.

Plaintiff has timely opposed the Motion, which is fully briefed.² Plaintiff makes no response to Defendant Young's jurisdictional arguments, except to agree “that the GTCA, when available, insulates a government employee acting within [the] scope of employment” from personal liability. See Pl.'s Resp. Def. Young's Mot. Dismiss [Doc. No. 27], p.22.³ Plaintiff instead contends the factual allegations of his pleading are sufficient to state plausible claims under the notice pleading standard of Fed. R. Civ. P. 8(a) for individual liability of Defendant Young under § 1983 for conduct that is not protected by the defense of qualified immunity, and for common law negligence committed outside the scope of his employment. Plaintiff argues that many facts on which Defendant Young bases his Rule 12(b)(6) Motion are not contained in the complaint and cannot properly be considered without converting the Motion to one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d). Plaintiff also includes in his response brief, however, argument regarding factual matters outside his complaint and the existing record, including quotations that he represents to be excerpts of agency policies and procedures or training materials. In addition to limits imposed by Rule 12(b)(6), this argument contravenes LCvR7.1(j), which provides: “Factual statements or documents appearing only in briefs shall not be deemed part of the record in the case, unless specifically permitted by the court.” Therefore, these portions of Plaintiff's argument are disregarded.

Defendant Young's position with regard to his argument of additional, extra-pleading facts is that Plaintiff relies in his complaint on parts of a written statement given by Defendant Young shortly after the shooting of David Maher. Defendant Young asserts that binding precedent authorizes the consideration of certain materials outside the pleadings under Rule 12(b)(6) and, under the circumstances of this case, permits his entire written statement to be considered. See Def. Young's Mot. Dismiss [Doc. No. 25], p.5, n.2 (citing GFF Corp. v. Assoc. Wholesale Grocers, Inc. , 130 F.3d 1381, 1384–85 (10th Cir.1991), and Pace v. Swerdlow , 519 F.3d 1067, 1072–73 (10th Cir.2008) ).

The Court has previously ruled in addressing a motion filed by Defendant State of Oklahoma ex rel . Oklahoma Tourism and Recreation Department (“OTRD”) that arguments based on factual matters outside the complaint would be disregarded in deciding dismissal motions made under Rule 12(b)(6) in this case. See Order of April 17, 2015 [Doc. No. 16]. Although the precise argument now made by Defendant Young was not addressed in that ruling, the Court is not persuaded that the events described in his unsworn written statement dated May 5, 2013, must be accepted as true merely because Plaintiff refers in his complaint, or even adopts, portions of the statement that are favorable to his case.

The rule on which Defendant Young relies for consideration of his written statement has been stated as follows: “[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.” GFF Corp. v. Assoc. Wholesale Grocers, Inc ., 130 F.3d 1381, 1384–85 (10th Cir.1991) ; see Alvara do v. KOB – TV, L.L.C. , 493 F.3d 1210, 1215 (10th Cir.2007) (“ ‘the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity’ ”) (quoting Jacobsen v. Deseret Book Co ., 287 F.3d 936, 941 (10th Cir.2002) ). In this case, Defendant Young's statement is not central to Plaintiff's claim; Plaintiff could have pleaded his case without any mention of it.⁴ This case is unlike one, for example, in which an alleged Fourth Amendment violation is based on an insufficient probable cause affidavit. See, e.g. , Larson v. Agos , 449 Fed.Appx. 725, 729 (10th Cir.2011).

Further, the rule stated in GFF Corp. permits, but does not require, a district court to consider documents outside the complaint under the circumstances described in GFF Corp. See Prager v. LaFaver , 180 F.3d 1185, 1189 (10th Cir.1999). Even if Defendant Young's unsworn statement could properly be considered, the Court would decline to rely on it in assessing the sufficiency of Plaintiff's pleading to state a claim against Defendant Young. The factual circumstances under which the statement was made are not shown by the record, and it could reasonably be viewed as a self-serving statement by one party to the controversy concerning disputed facts.

For these reasons, the Court proceeds to consider the sufficiency of Plaintiff's complaint to state a claim of individual § 1983 liability or negligence against Defendant Young, as argued in Plaintiff's response brief, based solely on the factual allegations of his pleading.

Plaintiff's Claims

Under the existing complaint,⁵ Plaintiff seeks to recover damages for personal injuries suffered by David Maher during a confrontation with Defendant Young on May 5, 2013, in McGee Creek State Park involving the use of pepper spray, and David Maher's death as a result of being shot twice through the driver-side window of his motor vehicle when he attempted to flee from Defendant Young. Defendant Young was then a park ranger employed by OTRD and subject to training and certification as a peace officer by the Council on Law Enforcement Education and Training (“CLEET”). Plaintiff alleges that Defendant Young lacked any factual basis to detain or arrest David Maher, who was not suspected of any criminal activity in the park and did not engage in any threatening behavior. Plaintiff asserts claims under federal and state law as follows: Count 1, a § 1983 claim against Defendant Young for his alleged use of excessive force in violation of the United States Constitution (see Compl. [Doc. No. 1-2], ¶¶ 21-23);⁶ Count 2, a § 1983 claim against management officials of OTRD and CLEET for an alleged failure to train Defendant Young “as to when and under what circumstances to effectuate an arrest ... and under what circumstances to use deadly force” (see id . ¶ 24); and Count 3, a common law negligence claim against Defendant Young that allegedly is not subject to the GTCA because “he was acting outside the scope of his employment” with OTRD (id . ¶ 27). Defendant Young's Motion challenges both Counts 1 and 3 against him.

Standard of Decision

“To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); see Robbins v. Oklahoma , 519 F.3d 1242, 1247 (10th Cir.2008). “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, 129 S.Ct. 1937. Determining whether a complaint states a plausible claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” See id . at 679, 129 S.Ct. 1937 ; see also Robbins , 519 F.3d at 1248. In assessing plausibility, the Court first disregards conclusory allegations and “next consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.” Iqbal , 556 U.S. at 681, 129 S.Ct. 1937.

It is particularly important in § 1983 cases for a complaint “to provide each individual with fair notice as to the basis of the claims against him or her.” See Robbins , 519 F.3d at 1249-50 (emphasis omitted); see also Smith v. United States , 561 F.3d 1090, 1104 (10th Cir.2009). Further, where a defendant asserts qualified immunity, the plaintiff must allege sufficient facts to overcome this defense. “The doctrine of qualified immunity protects government officials from liability for civil damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ...