Romero v. City of Miami

• Court: U.S. District Court — Northern District of Oklahoma
• Writing for the Court: JOHN E. DOWDELL
• Citation: Romero v. City of Miami, 8 F.Supp.3d 1321 (N.D. Okla. 2014)
• Decision Date: 20 March 2014
• Docket Number: Case No. 12–CV–346–JED–PJC.
• Parties: Michael ROMERO, Plaintiff, v. The CITY OF MIAMI, et al., Defendants.

8 F.Supp.3d 1321

Michael ROMERO, Plaintiff,

v.The CITY OF MIAMI, et al., Defendants.

Case No. 12–CV–346–JED–PJC.

United States District Court, N.D. Oklahoma.

Signed March 20, 2014

Motions granted in part, and denied in part. Bradford D. Barron, Richard D. Gibbon, Zachary T. Barron, Gibbon Barron & Barron, P.L.L.C., Tulsa, OK, for Plaintiff.

Nathaniel Thomas Smith, Thomas Adrian LeBlanc, Best & Sharp, Jason Allen Robertson, Pierce Couch Hendrickson Baysinger & Green, Tulsa, OK, for Defendants.

OPINION AND ORDER

JOHN E. DOWDELL, District Judge.

Plaintiff Michael Romero brought this civil rights action against his former employer, the City of Miami, Oklahoma, several of its officers, and two other municipal entities. Romero, the City's former Chief Financial Officer, claims that he was forced to undergo an unconstitutional drug and alcohol screening and then was unlawfully fired when he raised questions about its propriety. A number of the defendants seek dismissal of some or all of his claims against them (see Docs. 36 and 38), which the Court will now address.

At an October 11, 2011 City Council meeting, the Council voted to pass a resolution suspending and removing Romero as CFO. Romero alleges that, at the conclusion of the Council meeting, while still in Council chambers, City Attorney Anderson stated to the public and news media that Romero had been terminated due to his attempt to “extort” the City of Miami. (Doc. 33, at 13). Romero requested an administrative hearing thereafter, and another Council meeting was held on October 17, wherein a citizen inquired about Romero's termination. Romero alleges that Mayor Ketcher responded to the citizen: “I don't think he'll be snitching to you anymore.” (Doc. 33, at 13). Romero was formally terminated the next day.

Romero filed a claim with the Equal Employment Opportunity Commission on February 2, 2012, and a Notice of Tort Claim with the City of Miami on February 23, 2012, as required under Oklahoma law. Romero brought this litigation on June 19, 2012. The Court entered an order (Doc. 32) on March 28, 2013 permitting Romero to file his First Amended Complaint (Doc. 33). OMUSA seeks dismissal of Romero's claims against it, arguing that Romero has not exhausted his administrative remedies with respect to OMUSA as required under Oklahoma law (see Doc. 36). Defendants Ketcher, Schultz, Trussler, Atkinson, Dalgarn, Anderson, Wilson, Long, Wells, and Hill (collectively, the “Individual Defendants”) seek dismissal of Counts II, V, VI, VII, VIII, IX, and X against them (see Doc. 38), pursuant to Fed.R.Civ.P. 12(b)(6).²

Standards

In considering a Rule 12(b)(6) dismissal motion, a court must determine whether the plaintiff has stated a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). The Federal Rules of Civil Procedure require “a short and plain statement of the claim to show that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint must provide “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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The standard does “not require a heightened fact pleading of specifics, but only 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. at 555–56, 570, 127 S.Ct. 1955 (citations omitted). “Asking for plausible grounds ... does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence [supporting the claim]. And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ ” Id. at 556, 127 S.Ct. 1955. “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, 127 S.Ct. 1955.

Twombly articulated the pleading standard for all civil actions. See Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded factual allegations of the complaint as true, even if doubtful, and must construe the allegations in the light most favorable to the claimant. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007).

Discussion

I. OMUSA's Motion to Dismiss (Doc. 36)

As noted, OMUSA seeks dismissal of Romero's claims against it as a result of Romero's alleged failure to exhaust his administrative remedies under the Oklahoma Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51, § 151 et seq. Romero's response points out that his claims against OMUSA are brought pursuant to 42 U.S.C. § 1983, not state tort law, and as such he was not required to comply with the GTCA.³

The GTCA does require that political subdivisions of the State of Oklahoma be given notice of tort claims as a prerequisite to bringing a lawsuit. See Okla. Stat. tit. 51, § 156. But the Supreme Court has stated that “[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 cannot be immunized by state law.” Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 376–77, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (quoting Martinez v. California, 444 U.S. 277, 284 n. 8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980)). The Tenth Circuit has very plainly held this statement to mean that “[a] § 1983 claim may be available, even though a state remedy is foreclosed by the Oklahoma Governmental Tort Claims Act.” Tiemann v. Tul–Ctr., Inc., 18 F.3d 851, 853 (10th Cir.1994); see also Phillips v. Wiseman, 857 P.2d 50, 52 (Okla.1993) (“[T]he [Oklahoma] Governmental Tort Claims Act and 42 U.S.C. § 1983 provide a ‘double-barreled system,’ and ... escaping liability under one does not necessarily mean that a party also escapes liability under the other.”). Indeed, a cursory review of prior rulings from this Court would have demonstrated to OMUSA that Romero's § 1983 was not foreclosed under the GTCA. See, e.g., Poore v. Glanz, 11–CV–0797–JED–TLW, 2012 WL 1536933 (N.D.Okla. Apr. 30, 2012) (“plaintiff's lack of compliance with the notice requirements of the GTCA is not a defense to a § 1983 claim.”).⁴

OMUSA's Motion to Dismiss (Doc. 36) is therefore denied.

II. Individual Defendants' Motion to Dismiss (Doc. 38)

The Individual Defendants seek dismissal of the following Counts in the FAC: II (§ 1983 Fourth and Fourteenth Amendment violation—individual capacity), V (injunctive relief pursuant to § 1983), VI (invasion of privacy), VII (negligent drug and alcohol testing), VIII (negligent permitting and/or failing to prevent tortious conduct of MESO and OMUSA), IX (intentional infliction of emotional distress), and X (defamation by slander).

A. Section 1983 (Counts II and V)

The Individual Defendants seek dismissal of the § 1983 claims alleged against them in their individual capacity based upon three distinct arguments: 1) the § 1983 claims against the Individual Defendants should be dismissed because Romero has failed to sufficiently allege the personal involvement of any of them in the allegedly unlawful drug and alcohol testing; 2) the Individual Defendants are all entitled to legislative immunity in connection with the facts alleged; and 3) defendant Anderson is entitled to qualified immunity to the extent Romero's claim is based upon legal advice provided by Anderson to the City.

i. Personal Involvement

Section 1983 provides a claim for relief against state actors for violation of a plaintiff's federal rights. Becker v. Kroll, 494 F.3d 904, 914 (10th Cir.2007). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Anderson v. Suiters, 499 F.3d 1228, 1232–33 (10th Cir.2007). In the case of a municipal entity, the “under color of state law” element requires that the constitutional deprivation occurred pursuant to official policy or custom. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipal entity may be held liable for an act it has officially sanctioned, or for the actions of an official with final policymaking authority. Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 482–83, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 127–28, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). A plaintiff “must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir.1998) (quoting Board of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). A claim against a state actor in his or her official capacity “is essentially another way of pleading an action against the county or municipality”, and is analyzed under the standard applicable to § 1983 claims against municipalities or counties. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir.2010).

Romero's § 1983 claims against the Individual Defendants in their individual capacity are premised upon the concept of supervisory liability. To establish a claim of supervisory liability under § 1983, a plaintiff must plead and ultimately prove that “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2)...