VICKI MILES-LaGRANGE, District Judge.
Before the Court is defendant Derrick Lynn Ware's ("Ware") Motion to Dismiss Second Amended Complaint, filed May 5, 2015. On May 28, 2015, plaintiffs filed their response.
Regarding the standard for determining whether to dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the United States Supreme Court has held:
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief." Id. at 679 (internal quotations and citations omitted). Additionally, "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Id. at 678 (internal quotations and citations omitted). A court "must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (internal quotations and citation omitted). Further, "[a] court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). Finally, the Court is mindful that Haines v. Kerner, 404 U.S. 519 (1972), requires a liberal construction of pro se complaints; however, the Court is not required to imagine or assume facts in order to permit a complaint to survive. Hall, 935 F.2d at 1109-10.
Additionally, because 42 U.S.C. § 1983 is a vehicle for imposing personal liability on government officials, the Tenth Circuit has stressed the need for careful attention to particulars, especially in lawsuits involving multiple defendants, such as the instant case. See Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013). Further,
Id. at 1225-26 (internal quotations and citations omitted)(emphasis in original).
In their Second Amended Complaint, plaintiffs assert the following causes of action against Ware: (1) unconstitutional search and seizure/deprivation of liberty (First Cause of Action); (2) unconstitutional search and seizure/deprivation of liberty (Second Cause of Action); (3) unconstitutional search and seizure/deprivation of liberty (Fifth Cause of Action); (4) conspiracy of attempt to kill by use of a firearm (Sixth Cause of Action); (5) conspiracy to kidnap (Seventh Cause of Action); (6) excessive bail (Eighth Cause of Action); (7) right to confront witness (Ninth Cause of Action); (8) right to due process (Tenth Cause of Action); (9) conspiracy to interfere with civil rights (Eleventh Cause of Action); (10) assault and battery (Twelfth Cause of Action); (11) attempt to kill with deadly weapon (Thirteenth Cause of Action); (12) kidnap (Fourteenth Cause of Action); (13) Oklahoma civil rights violation — excessive force (Fifteenth Cause of Action); and (14) breach of contract (Eighteenth Cause of Action). In its February 17, 2015, the Court did not dismiss the First Cause of Action, Second Cause of Action, Thirteenth Cause of Action, and the Fifteenth Cause of Action against Ware that are reasserted in plaintiffs' Second Amended Complaint. Ware now moves to dismiss all of the claims against him except for those that the Court previously did not dismiss.
In their Fifth Cause of Action against Ware, plaintiffs assert a claim for unconstitutional search and seizure/deprivation of liberty. Having carefully reviewed plaintiffs' Second Amended Complaint
In their Sixth Cause of Action, plaintiffs assert a claim for conspiracy to attempt to kill by use of a firearm. "To demonstrate the existence of a conspiratorial agreement it simply must be shown that there was a single plan, the essential nature and general scope of which was known to each person who is to be held responsible for its consequences." Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir. 1990) (internal quotations and citation omitted).
In their Second Amended Complaint, plaintiffs make the following allegations regarding this cause of action:
Second Amended Complaint at ¶¶ 118-122. The Court finds these allegations are merely conclusory allegations and plaintiffs have not set forth sufficient factual allegations to plausibly show there was a single plan amongst Ware and the other defendants to attempt to kill by use of a firearm. Accordingly, the Court finds that plaintiffs' Sixth Cause of Action against Ware should be dismissed.
In their Seventh Cause of Action, plaintiffs assert a claim for conspiracy to kidnap. In their Second Amended Complaint, plaintiffs allege the following regarding the conspiracy to kidnap:
Second Amended Complaint at ¶¶ 79, 128, 129.
Having carefully reviewed the Second Amended Complaint, and presuming all of plaintiffs' factual allegations are true and construing them in the light most favorable to plaintiffs, the Court finds plaintiffs have set forth sufficient factual allegations to state a claim for conspiracy to kidnap against Ware. The Court finds the factual allegations set forth in the Second Amended Complaint are sufficient to allow the Court to draw the reasonable inference that Ware is liable for the misconduct alleged. Accordingly, the Court finds that plaintiffs' Seventh Cause of Action should not be dismissed.
In their Eighth Cause of Action, plaintiffs assert a claim for excessive bail. Having carefully reviewed the Second Amended Complaint, the Court finds plaintiffs have failed to state a claim for excessive bail against Ware. Specifically, the Court finds that the allegations set forth in relation to this cause of action are not sufficient to allow the Court to draw the reasonable inference that Ware is liable for the misconduct alleged. Accordingly, the Court finds that plaintiffs' Eighth Cause of Action against Ware should be dismissed.
In their Ninth Cause of Action, plaintiffs assert a claim for right to confront witness. Having carefully reviewed the Second Amended Complaint, the Court finds plaintiffs have failed to state a claim. Specifically, the Court finds that plaintiffs have set forth no specific factual allegations relating to Ware regarding this claim. Plaintiffs simply use the term "Defendants" or collectively "Defendants Roberts, Ware, Fausett and Kirk" in relation to this claim, without specifically identifying the specific actions a specific defendant performed. The Court, therefore, finds the allegations set forth in relation to this cause of action are not sufficient to allow the Court to draw the reasonable inference that Ware is liable for the misconduct alleged. Accordingly, the Court finds that plaintiffs' Ninth Cause of Action against Ware should be dismissed.
Plaintiffs asserted this same cause of action against Ware in their First Amended Complaint, and the Court dismissed this cause of action against Ware. The only additional allegation set forth in the Second Amended Complaint states that "Defendants neither provided the Plaintiffs with a warrant at the time of the unlawful detention, nor immediately after the Plaintiffs had been falsely arrested." Second Amended Complaint at ¶ 162. In this new allegation, plaintiffs use the term "Defendants" without specifically identifying the specific actions a specific defendant performed. The Court, therefore, finds the allegations set forth in relation to this cause of action are still not sufficient to allow this Court to draw the reasonable inference that Ware is liable for the misconduct alleged. Accordingly, the Court finds that plaintiff's Tenth Cause of Action against Ware should be dismissed.
In their Eleventh Cause of Action, plaintiffs assert a claim for conspiracy to interfere with civil rights. In their Second Amended Complaint, plaintiffs make the following allegations regarding this cause of action:
Second Amended Complaint at ¶¶ 165-171. The Court finds these allegations are merely conclusory allegations and plaintiffs have not set forth sufficient factual allegations to plausibly show there was a single plan amongst Ware and the other defendants to interfere with civil rights. Accordingly, the Court finds that plaintiffs' Eleventh Cause of Action against Ware should be dismissed.
In their Twelfth Cause of Action, plaintiffs assert a claim for assault and battery. Specifically, plaintiffs allege that defendants Ware and Roberts "together strangled by the neck Caleb Meadows as Ware pulled Caleb Meadows, and Roberts wrapped a seat belt around Caleb Meadows' neck and both Defendants simultaneously pulled the Plaintiff attempting to `split' the Plaintiff in two pieces." Second Amended Complaint at ¶ 179. The Court finds that the above allegation is sufficient to state an assault and battery claim against Ware. Accordingly, the Court finds that plaintiffs' Twelfth Cause of Action against Ware should not be dismissed.
In their Fourteenth Cause of Action, plaintiffs assert a kidnap claim. Having carefully reviewed the Second Amended Complaint, and presuming all of plaintiffs' factual allegations are true and construing them in the light most favorable to plaintiffs, the Court finds plaintiffs have set forth sufficient factual allegations to state a kidnap claim against Ware. The Court finds the factual allegations set forth in the Second Amended Complaint are sufficient to allow the Court to draw the reasonable inference that Ware is liable for the misconduct alleged. Accordingly, the Court finds that plaintiffs' Fourteenth Cause of Action against Ware should not be dismissed.
In their Eighteenth Cause of Action, plaintiffs assert a claim for breach of contract. Under Oklahoma law, in order to recover on a breach of contract claim, a plaintiff must establish: (1) formation of a contract, (2) breach of the contract, and (3) damages as a direct result of the breach. See Dig. Design Grp., Inc. v. Info. Builders, Inc., 24 P.3d 834, 843 (Okla. 2001). Having carefully reviewed the Second Amended Complaint, and presuming all of plaintiffs' factual allegations are true and construing them in the light most favorable to plaintiffs, the Court finds plaintiffs have failed to state a breach of contract claim. Specifically, the Court finds that plaintiffs have set forth no facts showing any formation of a contract between plaintiffs and Ware. Accordingly, the Court finds that plaintiffs' Eighteenth Cause of Action against Ware should be dismissed.
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART Ware's Motion to Dismiss Second Amended Complaint [docket no. 76] as follows:
