Buck v. Rhoades

598 F.Supp.3d 1181

Sheila BUCK, Plaintiff,

v.C.J. RHOADES, in his individual capacity, et al., Defendants.

Case No. 21-CV-0295-CVE-SH

United States District Court, N.D. Oklahoma.

Signed April 6, 2022

Bryon Davis Helm, Daniel E. Smolen, Robert Murray Blakemore, Smolen and Roytman, Tulsa, OK, for Plaintiff.

Stephan Alan Wangsgard, Terri Michelle McGrew, City of Tulsa, Tulsa, OK, for Defendants CJ Rhoades, MC Parker.

R. Lawson Vaughn, III, Stephan Alan Wangsgard, Terri Michelle McGrew, City of Tulsa, Tulsa, OK, for Defendant City of Tulsa, Oklahoma.

Derrick Thad DeWitt, DeWitt Paruolo & Meek, Edmond, OK, Lance Chandler Cook, Madeline Marie Marshall, DeWitt Paruolo & Meek DeWitt, Paruolo & Meek, Oklahoma City, OK, for Defendant Colorado Security Agency, Inc.

OPINION AND ORDER

CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

Before the Court are defendants C.J. Rhoades, M.C. Parker, and City of Tulsa's motion to dismiss (Dkt. # 8); plaintiff's response to C.J. Rhoades, M.C. Parker, and City of Tulsa's motion to dismiss (Dkt. # 32); defendants C.J. Rhoades, M.C. Parker, and City of Tulsa's reply (Dkt. # 42); defendants Donald J. Trump for President, Inc. and Brad Parscale's motion to dismiss (Dkt. # 29); plaintiff's response to Donald J. Trump for President, Inc. and Brad Parscale's motion to dismiss (Dkt. # 40); and defendants Donald J. Trump for President, Inc. and Brad Parscale's reply (Dkt. # 43). This case arises from plaintiff Sheila Buck's forced removal from a June 20, 2020 political campaign rally for then-President Donald J. Trump in Tulsa, Oklahoma, and her subsequent arrest by Tulsa Police Department (TPD). On June 1, 2021, plaintiff filed a petition in state court against eight defendants, including defendants Rhoades, Parker, City of Tulsa, Parscale, and Donald J. Trump for President, Inc. (Trump Campaign). Dkt. # 3-1, at 6. The case was properly removed to federal court. Dkt. # 3. On July 21, 2021, plaintiff filed an amended complaint naming an additional defendant. Dkt. # 1. On August 2, 2021, defendants Rhoades, Parker, and City of Tulsa moved, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss plaintiff's claims against them for failure to state a claim upon which relief may be granted. Dkt. # 8. Similarly, on August 23, 2021, defendants Parscale and Trump Campaign moved to dismiss under Rule 12(b)(6) for failure to state a claim. Dkt. # 29.

I.

Defendant Trump Campaign contracted with venue management firm, ASM Global, to secure use of Tulsa, Oklahoma's BOK Center for a June 20, 2020 political campaign rally for the re-election of then-President Trump. Dkt. # 1, at 4, 6. "The City of Tulsa mandates that any permit encompassing a city street[, as here,] be submitted for application no later than 45 days before the event." Id. at 6. On June 17, 2020, Tulsa Mayor G. T. Bynum's office issued a public statement that Mayor Bynum "did not sign a contract, an agreement or issue a City permit" for this event. Id. In other words, defendant Trump Campaign did not apply for a city permit, which is generally required to block public street access around the BOK Center. Id. at 7.

On June 20, 2020, plaintiff presented her event ticket to "Secret Service security staff" for the Trump Campaign's political rally and, after receiving a security screening, was allowed "into a cordoned-off area that surrounded the BOK Center and included Denver Avenue, among other downtown thoroughfares." Id. at 4. "Plaintiff was dressed in a shirt that read ‘I can't breathe’ and donned a black scarf that covered her head." Id. While plaintiff was standing on a public street (Denver Avenue), "a member of the Trump Campaign staff, at the direction of [Trump Campaign employee] [d]efendant Parscale, instructed [d]efendant Colorado Security, TPD, and the Secret Service to remove [p]laintiff Buck from the premises." Id. at 5. TPD officers (defendants Rhoades and Parker), two Secret Service agents, and a Colorado Security Agency, Inc. (Colorado Security) employee approached plaintiff and "informed her that she was not allowed inside the cordoned off premises[.]" Id. Plaintiff, who was screened for prohibited items and passed through the security screening without incident, displayed her event ticket and insisted that she should be allowed to stay. Id. at 4-5. "Plaintiff then knelt down to pray." Id. at 5. Plaintiff was informed that "the blocks around the city-owned area are ‘like a private home, and if you've been asked to leave, you have to leave.’ " Id. She was apprehended by defendants TPD officers Rhoades and Parker, who told plaintiff she was "trespassing and breaking the law," arrested her, and took her to the David L. Moss Criminal Justice Center (Tulsa County Jail), where she was booked for "obstructing a police officer." Id. Plaintiff "spent hours in the [Tulsa County] Jail's booking area and suffered bruises and lacerations on her arms as a result of her handling by Tulsa Police." Id. at 6. Plaintiff alleges that defendant Parscale directed TPD officers, Secret Service agents, and a Colorado Security employee to remove plaintiff from the cordoned-off portion of Denver Avenue "due to her shirt that read ‘I can't breathe’ and other clothing that was the color black."¹ Id. at 7.

In a statement issued after plaintiff's arrest, TPD Captain Richard Meulenberg stated that "Trump Campaign staff directed police to arrest [plaintiff] because the event permit included the city streets surrounding the area"; however, Capt. Meulenberg "admitted he had not seen contract language that allowed the [Trump] Campaign to direct police to arrest citizens[.]" Id. at 6. TPD also issued a statement on Facebook, which stated, in pertinent part, plaintiff "had passed through the metal detector area to the most secure area of the event accessible only to ticket holders.... [TPD] [o]fficers at the location ... will remove individuals only at the direction of [c]ampaign [s]taff." Id. (emphasis added). Plaintiff alleges that defendant City of Tulsa, through the TPD, "approved of an unconstitutional arresting policy in accordance with the wishes of the Trump Campaign ... [that is,] TPD professedly approved of and operated under an absolute policy of removing and arresting individuals, without question or regard for constitutional rights, at the simple behest of the Trump Campaign." Id. at 8.

On July 20, 2021, plaintiff filed an amended complaint in federal court alleging the following causes of action: civil rights violations under 42 U.S.C. § 1983 (counts 1, 2, 5, 7); civil rights violations under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (count 4); and state claims of false imprisonment (count 3) and fraudulent misrepresentation (count 6). Dkt. # 1, at 8-16.

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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955. Although decided within an antitrust context, Twombly "expounded the pleading standard for all civil actions." Ashcroft v. Iqbal, 556 U.S. 662, 683, 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 allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the claimant. 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) ; 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.

Defendants Rhoades, Parker, City of Tulsa, Trump Campaign, and Parscale move to dismiss certain claims brought by plaintiff on the following grounds:

a. C.J. Rhoades, M.C. Parker, and City of Tulsa's Motion to Dismiss (Dkt. # 8)

Plaintiff alleges § 1983 claims for constitutional rights violations against defendants TPD officers Rhoades and Parker in their individual capacity (counts 1, 2, 5). Dkt. # 1, at 8-9, 12-13. Additionally, plaintiff alleges a § 1983 claim against defendant City of Tulsa under Pembaur v. City of Cincinnati et al., 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), for violations of her First, Fourth, Fourteenth, and Fifth Amendment rights (count 7). Id. at 15-16.

Defendants Rhoades, Parker, and City of Tulsa move to dismiss because 1) plaintiff failed to state claims under § 1983 against defendants Rhoades and Parker for violating plaintiff's First, Fourteenth, and Fourth Amendment rights; 2) Defendants Rhoades and Parker are entitled to qualified immunity; 3) plaintiff failed to state a Pembaur claim against defendant City of Tulsa for violations of her First, Fourth, Fourteenth, and Fifth Amendment rights; 4) plaintiff failed to state a claim for punitive damages against defendants Rhoades, Parker, and City of Tulsa; and 5) "this Court has no jurisdiction over [p]laintiff's state [claims]." Dkt. # 8, at 1-2. Specifically, defendants argue that p...