Perry et al v. Fullerton et al

RESPONSE in Opposition re MOTION for Summary Judgment and Brief in Support exhibits

W.D. Okla.September 24, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA BEVERLY PERRY and LINDA WILSON, Plaintiffs, Case No: CIV-16-1210-M v. (Removed from Comanche County Case G. DALE FULLERTON, No.: CJ-2016-116) Defendant, PLAINTIFFS’ RESPONSE TO MOTION FOR SUMMARY JUDGEMENT AND BRIEF IN SUPPORT MONTY DELLUOMO, OBA #11810 DELLUOMO AND CROW, P.A. 6812 N. Robinson Ave. Oklahoma City OK 72116 Telephone: (405) 843-0400 Facsimile: (405) 843–5005 Email: monty@delluomo.com 1 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 1 of 40 TABLE OF CONTENTS 2 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 2 of 40 STATEMENT OF UNDISPUTED MATERIAL FACTS DEFENDANT: 1. Defendant at all times relevant to this lawsuit was employed by the Oklahoma State Board of Veterinary Medical Examiners as an investigator. Affidavit of Cathy Kirkpatrick, Executive Director of the OSBVME, attached as Exhibit 1. PLAINTIFFS’ RESPONSE: 1. Admitted. DEFENDANT: 2. On January 18, 2015, the City Manager of Lawton, Bryan Long, made a written request for assistance from the OSBVME to investigate the Lawton Animal Welfare shelter as a result of public complaints OSBVME Report at p.2 attached as Exhibit 2. PLAINTIFFS’ RESPONSE: 2. Admitted in part. Denied as to the date. See copy of letter dated January 8, 2014 (However, 2014 appears to be the incorrect year.) DEFENDANT: 3. These complaints included allegations that a dog had been starved to death, misappropriation of funds, incompetent management complaints, and alleged animal abuse. Id. at p. 2. The OSBVME approved this request and launched an investigation. Ex. 1; see also Affidavit of Dale Fullerton, attached as Exhibit 3; Ex. 2 at p. 2 3 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 3 of 40 PLAINTIFFS’ RESPONSE: 3. Admitted in part. Denied in part. Admitted in that the letter Ex. 1, states “a series of public complaints” “including charges of animal neglect, misappropriation of shelter funds, incompetent management and staff, and worse, animal abuse.” Denied in that the letter did not state “allegations that a dog had been starved to death.” Citizens had a variety of complaints not mentioned in Bryan Long’s letter. Concerns regarding a dog that had been starved to death originated from Rose Wilson’s response to a letter from kennel workers confirming that a dog had starved to death and that “it had happened before.” DEFENDANT: 4. Defendant , through the OSBVME, was assigned to conduct this investigation of the City of Lawton Animal Welfare shelter and to author a report of his findings. EX. 1; See also Affidavit of Dale Fullerton, attached as Exhibit 3; Ex. 2 at p. 2. PLAINTIFFS’ RESPONSE: 4. Admitted. DEFENDANT: 5. Defendant conducted his investigation into the allegations against Lawton Animal Welfare (“LAW”,) Exs. 1 and 3. PLAINTIFFS’ RESPONSE: 5. Denied. Defendant admitted in his deposition that he focused his investigation on the “complainers” rather than the actual complaints. In Defendant’s deposition he 4 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 4 of 40 referred to Plaintiff Perry several times as the “chief complainer.” He also stated that he didn’t need to focus on the shelter because he “already knew what was going on there.” Defendant admitted his focus was investigating what was going on with the “complainers”, and even admitted it was “all about the facebook page.” Very few sections in the report provide evidence of an investigation of the actual shelter, shelter management, or condition of the animals. The majority of the report was maliciously written to discredit and smear the “complainers.” DEFENDANT: 6. As part of the investigation, Defendant looked into allegations made by Plaintiffs Perry and Wilson regarding LAW. Ex. 2, pp. 9-21; see also Deposition of Wilson, at p. 46, In. 5-9, attached as exhibit 5. PLAINTIFFS’ RESPONSE: 6. Denied. If Defendant had “looked into” the allegations he would have found that they were truthful statements made by numerous concerned citizens. In fact, Defendant interviewed two citizens in person, namely Lizzy Druvenga and Sharleen Gehers (See affidavit of Elizabeth Druvenga) and obtained the exact same testimony and records that were submitted to Defendant by Plaintiff Perry. Rather than investigating the truthfulness of the citizen complaints, Defendant published in his Report that it was a “gross misrepresentation of Lawton Animal Welfare and should not be taken as fact.” There is no documentation or signed statements in his report (other than the numerous 5 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 5 of 40 documents Plaintiff Perry provided) where Defendant investigated these complaints or even tried to contact the vast majority of citizens who submitted them. Throughout his report Defendant attempts to make it appear that these were all false allegations from Plaintiffs and other citizens in which he falsely claimed were criminal conspirators. In addition, he filed a false police report and recommended multiple felony charges against Plaintiffs, whistleblowers, and citizens who reported wrongdoing. DEFENDANT: 7. Perry operated the facebook site “Lawton Citizens for the Humane Treatment of Animals” (“LCHTA”), with assistance from Wilson. Ex. 2, p.9. Perry was (and is) the administrator of the Facebook page. Deposition of Perry, at p. 81, In. 9-11; p. 82, In. 3-5, attached as Exhibit 5. PLAINTIFFS’ RESPONSE: 7. Admitted in part. Denied in Part. Admitted that Plaintiff Perry was the administrator of the public forum. The page was created for the purpose of a discussion platform and dissemination of the online petition. Denied in that Plaintiff Wilson did not assist or operate the page. (see exhibit 4 affidavit of Plaintiff Wilson.) Posting comments to a forum is not “assistance.” If so, then there were hundreds of citizens “assisting” and a 6 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 6 of 40 large number “operating” the page. “Lawton Citizens for the Humane Treatment of Animals” is a public forum. DEFENDANT: 8. Wilson also frequently posted comments and status updates on the LCHTA Facebook page. Ex. 2. PLAINTIFF’S RESPONSE: 8. Admitted. Plaintiff Wilson frequently posted comments as did several hundred other citizens on the forum. Admitted that Plaintiff Wilson posted status updates on the condition of the dog “Friday”. DEFENDANT: 9. Defendant investigated Plaintiff Wilson’s claim that Ruth Steinberger, who was at the time the superintendent of LAW, was a member of the Oklahoma State Board of Veterinary Medical Examiners, and that Defendant reported to her. Ex, p. 9. This was determined to be false, as Ruth Steinberger has never been a board member. Id. PLAINTIFFS’ RESPONSE: 9. Denied. Defendant deliberately misrepresented his knowledge that Plaintiff Wilson was confused as to the difference as to the difference between the OVME as to the OVMA. Defendant did deliberately omitted the entire post by Plaintiff Wilson. (See Ex. 6 ) Steinberger was never the superintendent of LAW. Plaintiffs never stated that Defendant reported to her. Ex. 7 See affidavit of Wilson. 7 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 7 of 40 DEFENDANT: 10. Defendant investigated Perry’s accusation that LAW did not answer a call at 2619 NW 46th Street, where the caller reported a dog chained outside with no shelter. However, according to Defendant’s investigation, this address does not exist. Another call from the same caller sent animal control officer to the address 2302 NW 46th to investigate the previously named claim. The animal control officer reported that the dog was not chained up, had food, water and shelter. On January 12, 2015, in an attempt to follow up on the original address of 2619 NW 46th Street, the animal control officer supervisor contacted the water department in order to verify the address. As suspected, the water department confirmed the address was nonexistent. However, 2619 NW 46th Place was a valid address. In order to practice due diligence, an animal control officer was dispatched to NW 46th Place, located the dog, and issued several citations. This discrepancy in the address sent officer over 5 blocks away from the endangered animal. Therefore, Defendant found this allegation to be false. Ex. 2, p. 10; see also Exhibit 16 to the Report. PLAINTIFFS’ RESPONSE: 10. Denied that this was Plaintiff Perry’s “accusation". It was simply a post of a report from a citizen who mistakenly said the address of the violation was on 46th street rather than 46th place. The animal control officer eventually located the dog and issued citations. Once again Defendant labels a citizen complaint as “Perry’s accusation.” This is 8 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 8 of 40 another example of Defendant taking an event out of context and maliciously using it to make it appear that Plaintiff Perry was untrustworthy. DEFENDANT: 11. On January 2, 2015, Wilson stated on the LCHTA page that Ruth Steinberger and Dr. Wayne Haney, DVM, a veterinarian with LAW, received money for experimenting on LAW animals and were hiding the severe complication and deaths. Defendant investigated these claims and found them to be false. In fact, Parsemus Foundation responded stating that they had not made grants or passed funds through Spay FIRST! as payment to Dr. Wayne Haney, DVM for services conducted at or in conjunction with the City of Lawton. Ex. 3 and Ex. 2, p. 29. PLAINTIFFS’ RESPONSE: 11. Denied. Plaintiff Wilson did not post that Ruth Steinberger and Dr. Haney were receiving money for experimenting on “LAW animals.” Further Wilson did not state that they were receiving funds from the “Parsemus Foundation.” Denied in that Defendant knew, or should have known, they were hiding serious complications and death. DEFENDANT: 12. Defendant investigated Perry’s accusations that Dr. Wayne Haney, DVM falsified records, specifically on #945327 “Friday” due to chemical castration. Perry claimed #945327 “Friday” suffered complications due to chemical castration. Defendant investigated, and found nothing to substantiate her claims. In addition, Perry’s own 9 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 9 of 40 veterinarian determined that the “abscesses” on the dog were caused by “pseudomonas aeruginosa.” Ex. 2, pp. 11-12; see also Exhibit 17 to OSBVME Report. PLAINTIFFS’ RESPONSE: 12. Admitted in part. Denied in part. Denied in that the record referred to was #94527, not #945327. Denied in that Plaintiff Perry stated that Dr. Haney “altered” records, not falsified. Perry admits that she claimed that the dog “Friday” suffered from complications associated to calcium chloride castration. Denied that Defendant found nothing to substantiate Plaintiff’s claims. Denied that Plaintiff’s personal veterinarian determined that the abscesses on the dog were caused by pseudomonas aeruginosa. Fiorillo determined thSee Fiorillo affidavit. DEFENDANT: 13. Defendant investigated Perry’s claims that LAW and Dr. Wayne Haney, DVM were injecting “road salt” into the testicles of dogs for the purpose of castration causing chemical burns. After contacting medical professionals in the veterinary field, and well as a pharmacist, Defendant confirmed that there is no medical device that could perform such a procedure. E. 2, pp. 12 - 13.; see also Exhibit 18 to OSBVME Report. PLAINTIFFS’ RESPONSE: 13. Denied in part. Admitted in part. Plaintiff Perry used a layman’s term in this post regarding calcium chloride, referring to it as “road salt.” Denied in that Plaintiff Perry did not state “rock salt” as Defendant pictured in his Report. Calcium chloride, even as a deicer, comes in liquid, powder, and rock form. Plaintiff Perry also posted the 10 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 10 of 40 scientific information regarding calcium chloride, however this was willfully omitted by Defendant. The context of the post was regarding the caustic chemical action of calcium chloride which can be used as a deicer, not the purity of the chemical. Defendant was more concerned with discrediting Plaintiff Perry than he was with the serious complications associated to this experimental procedure that was being performed at LAW. DEFENDANT: 14. Defendant investigated Perry’s claim on the LCHTA Facebook page that at least seven deaths at LAW were associated with chemical castration complications. The investigation by Defendant revealed no medical records that listed chemical castration as the cause of death. Ex. 2, p. 14. PLAINTIFF’S RESPONSE: 14. Denied. Plaintiff Perry’s statement was that “kennel workers have reported at least 7 deaths and/or euthanasia associated to calcium chloride castration complications.” DEFENDANT: 15. Defendant was informed during his investigation that employees of LAW stated they felt intimidated by Perry and the LCHTA. According to Defendant’s report, at least one employee was brought to tears due to hurtful statement made by Perry and others. Id. at p. 14. 11 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 11 of 40 PLAINTIFFS’ RESPONSE: 15. Denied. Defendant did not identify any hurtful statements by Plaintiffs because they did not make any. DEFENDANT: 16. To better understand Perry’s medical background, Defendant verified her employment with Alcon Laboratories, as Perry claims she was (or had been) a certified ophthalmology technician, global head of medical safety, as well as surgical pre and post marketing surveillance for all surgical devices. Fullerton asked a representative of Alcon/ Novartis iF Perry worked there and to verify the title she gave. At the time the telephone call in 2014/2015, Perry had been medically retired since December, 2011. Ex, p. 29, In. 12-16. PLAINTIFF’S RESPONSE: 16. Denied. Plaintiff is without sufficient information as to whether Defendant actually called Alcon Labs. This appears to have intentionally used to discredit, humiliate and injure Plaintiff Perry. Admitted in part. Plaintiff Perry has been medically retired since December 2011. DEFENDANT: 17. Perry continued to make claims regarding LAW. Defendant investigated those claims, and deemed some of them unfounded. Ex. 3, see also Ex. 2, pp. 15-21. 12 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 12 of 40 PLAINTIFF’S RESPONSE: 17. Denied. The claims made by Plaintiff Perry were supported by fact. reported 2 complaints. One was regarding a 2013 case where a dog was left to starve even though LAW had been called numerous times by neighbors. The second complaint was regarding the dog “Friday’s” severe complication from calcium chloride castration and the altering of medical records by Dr. Haney. Defendant did not investigate. If he did, then he willfully fabricated statements Plaintiffs’ personal veterinarian Anthony Fiorillo, DVM. DEFENDANT: 18. After his investigation, Fullerton found the shelter was in generally good condition. However, Fullerton stated that maintenance and other issues should be addresses. Ex. 2, pp. 32-34. PLAINTIFF’S RESPONSE: 18. Denied in part. Plaintiffs are without sufficient information as to what Defendant found at the shelter. Denied in part. Admitted that Fullerton stated that there were maintenance issues to be addressed. It is important to note that there were at least 13 more serious issues that needed to be addressed at the Lawton Animal Shelter. DEFENDANT: 19. Fullerton, per his duties as an investigator for OSBVME, distributed copies of the Report to the following appropriate authorities as authorized by the investigation and by law: Jim Barwick, Assistant Attorney General; Fred Smith, Comanche County 13 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 13 of 40 District Attorney; Janes t. Smith, Lawton Police Chief; Frank Jensen, Lawton City Attorney; and Brian Long, Lawton City Manager. Exs. 1 and 3. PLAINTIFF’S RESPONSE: 19. Denied in part. Admitted in part. Denied that it was Fullerton’s role as investigator. The unsolicited distribution of the report was a violation of Oklahoma State Statute Title 59, section 698.28 confidentiality and was a violation of administrative rules title 75? Admitted that Fullerton wrongful distributed copies of the report to the individuals listed in paragraph 19. DEFENDANT: 20. Fullerton recommended LAW take necessary steps to prevent Perry and/or Wilson from being able to volunteer at the shelter. However, Fullerton did not have the authority to ban Plaintiffs, and Plaintiffs were never banned from LAW. Ex. 2, pp. 33-34; see also Ex 3; Ex. 5 at p. 75, In. 12-14; and See Affidavit of Russell Anderson, Exhibit 6. PLAINTIFF’S RESPONSE: 20. Denied in part. Admitted in part. Admitted that Defendant told LAW to take. Defendant published that LAW should take the necessary steps to not allow the following to volunteer at the shelter; Deloris Delluomo, Linda Reinwand, Pascall Osborne, Susan Barmettler, Beverly Perry, Cathy Aycock, Linda Wilson, Renee Turner 14 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 14 of 40 and Tammy Kerr Sides. Denied in that Defendant had the apparent authority that Plaintiffs and others be banned form the public animal shelter. Admitted that Defendant Fullerton did not have the authority to ban Plaintiffs, However, Defendant acted outside his authority by stating that Plaintiffs and others should be banned from LAW in further violation of Plaintiffs First Amendment Rights, Right to assemble and freedom of speech. Page 33 of Report. Not only did this violate Plaintiffs constitutional rights of Ex. News article. These intentional acts were done to intentionally done to humiliate Plaintiffs and others. appeared in Newspaper. DEFENDANT: 21. Fullerton opined that the Mayor’s committee to oversee LAW should be comprised of the Mayor, City Manager, rescue group member, veterinarian, shelter supervisor, a citizen at large, and a representative from Ft. Sill Army Base in order to give the group balance and structure. It was Fullerton’s opinion that placement of members of LCHTA on the committee was destined to fail. This was merely a suggestion, as Fullerton did not have any authority regarding appointment or election of committee members. Ex. 2, p. 32; Ex. 3; Ex. 5, p. 76, In. 18-20. PLAINTIFF’S RESPONSE: 21. Admitted Defendant did not have authority to recommend selection of the members of the Mayor’s Commission. List OSBVME role. 15 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 15 of 40 DEFENDANT: 22. At all times Fullerton was acting within the course and scope of his employment as an investigator fro OSBVME. Ex. 1; see also Ex. 3. PLAINTIFF’S RESPONSE: 22. Denied in part. Admitted in part. The OSBVME did accept the request to investigate LAW. However, Defendant’s investigation into the private lives of citizens who were petitioning their local government, simply because they were “complainers” and/or the “chief complainer” (as repeatedly stated in Defendants deposition) is not covered by the Oklahoma Veterinary Practice Act. Filed a false police report and attempted to have Plaintiffs charged with multiple felonies was outside his scope of employment, and a gross abuse of Power. DEFENDANT: 23. Fullerton did not provide a copy of his Report to any media outlet. See Ex. 1; Ex. 3 and Ex. 5, p. 73, In. 5-8. PLAINTIFF’S RESPONSE: 23. Denied Plaintiffs were banned from entering. Denied because he stated “should”, said Plaintiffs were criminals and conspriators. It was not a simple recommendation. part. Admitted in part. The fact that the report would be released to the public was widely published on the LCHTA facebook page. According to his Report, 16 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 16 of 40 Defendant was closely following the page. It was also widely reported and anticipated by the media, and officially announced by the City Manager. He made no attempt to stop the release, nor did the OSBVME. He also mentioned to Plaintiff Perry in an email on Feb 4, 2015 that “My report will not make everyone happy, but I don’t care if people are happy.” This statement implies Defendant knew that “everyone” would have access to it. The report is still available to the public online. A search of Plaintiffs' names and the names of other citizens will lead “everyone” to Defendant’s false report. Plaintiffs are unaware of any action taken to remove this “confidential” report. Not enough evidence to admit or deny. DEFENDANT: 24. Perry and Wilson were never barred entrance to the Lawton Animal Shelter. Ex. 4, p. 54In. 15-19; Ex. 5, p.75, In. 12-14; and Ex. 6. PLAINTIFF’S RESPONSE 24. Denied in part. Admitted in part. Defendant, acting in his official capacity, published that LAW should take the initiative steps to ban the following individuals from the shelter; Deloris Delluomo, Linda Reinwand, Pascall Osborne, Susan Barmettler, Beverly Perry, Cathy Aycock, and Linda Wilson. Ex. p. 33. Defendant was instructing LAW to strip the civil right of entry to a public tax-supported facility to complainers, critics, and those petitioning their local government for change. Plaintiff Perry attended the first adoption event at the shelter prior to the release of the Report. She 17 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 17 of 40 did not return for fear she would be framed in further retaliation, and because Assistant City Manager, Jim Russell refused to clear the names of citizens publicly, stating he may need to in the future. Plaintiff Wilson volunteered assembling dog beds because she was concerned that staff would not have time. Eventually the fact that her name was not cleared publicly led to her departure. Plaintiffs and other citizens were banned as far as the public knew. The banning and their names appeared in the Lawton Constitution with a large headline. Physical barring is not the only way to bar someone from the shelter. Defendant falsely labeled Plaintiffs as liars, thieves, and criminals. He did everything possible to silence them. This “recommendation” to ban complainers immediately followed the critical “recommendation” to correct and monitor CDS records and logs. STATEMENT OF DISPUTED FACTS SUPPORTING PLAINTIFFS 1. Defendant and his employer concealed altered documents. Document number —— had tow versions. One, the apparently truthful one show a dog was injected with calcium chloride. The false report shows a “doctored’ up version and apparent cover-up where Rose Wilson blames employees for the death of the dog. This record was in the possession of Defendant. 2. Defendant admitted in his testimony that his main focus was to investigate the complainants and Defendant called Plaintiff Perry the “Chief Complainer”. The State Board of Veterinary Medical Examiners was recreated to “regulate and enforce the 18 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 18 of 40 practice of veterinary medicine in this state in accordance with the Oklahoma Veterinary Practice Act. 3. Defendant accused Plaintiffs and others in writing of stalking yet Defendant could not identify any evidence; no report of stalking was filed by the alleged victim and no police report was ever filed. 4. Defendant called Plaintiffs “Defendants” in his report, yet no citation was ever written and no criminal charge were filed against Plaintiffs. 5. Defendant disseminated and published the false report. Defendant was prohibited from publishing the report pursuant to O.S. Title 59 sec. 698.29. The dissemination of a false report is libel per se and Defendant published a false report with malice aforethought. The malice that Defendant held towards Plaintiff Perry was evident at his deposition when he leaned forward and coldly stared at Plaintiff Perry and called her a liar and exaggerator. Throughout his deposition he continuously referred Plaintiff Perry as the “Chief Complainer.” B. The Report was not privileged. Defendant refers to O.S. Title 12 sec.1441 which provides as follows: First. In any legislative or judicial proceeding or any other proceeding authorized by law (emphasis added); Second. In the proper discharge of an official duty; Third. By a fair and true report of any legislative or judicial or other proceeding authorized by law, or anything said in the course thereof…, 19 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 19 of 40 No publication which is considered privileged shall be punishable as libel. OKLA. STAT. tit. 12 sec. 1443.1 (emphasis added). Defendant cites the case of Johnson v. KFOR TV 6 P3d. 1067 for the proposition that Defendant is exempt from publishing a report. The difference between Johnson and the case at hand is that the Defendant did not submit a substantially correct account of the proceeding equaling the report was for the most part a falsity and unlike Johnson there was no “proceeding authorized by law.” This was an investigation, not a preceding. Individual proceeding is defined at Chapter 15 775: 15-1-2. Definition pursuant to the Administrative Rules Title 775 of the OK Vet Practice Act. Individual proceeding is defined as follows. (p.16) First there was no formal process in this case. The Board took no action other than apparently suggesting Defendant Fullerton retire. Further, the proceeding is for disciplinary action against a person licensed or certified by the Board in accordance with the Act and the APA. Plaintiffs were not licensed or certified by the Board. See Ex. ___ Oklahoma Veterinary Practice Act. 20 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 20 of 40 ARGUMENT AND AUTHORITY PROPOSITION 1: PLAINTIFFS’ LIBEL CLAIM IS SUPPORTED BY FACT AND LAW. Plaintiffs allege that Defendant published several false statements about Plaintiff Perry and Plaintiff Wilson and accused them of committing multiple felonies and misdemeanors, publishing they were conspirators, stalkers and thieves. Under the Second Restatement of Torts, the Plaintiff satisfies the elements of defamation by proving that (1) the Defendant published a statement to a third party (2) that is a false defamatory statement concerning the Plaintiffs, (3) the Defendant’s fault at least amounts to negligence, and (4) the statement caused damage to the Plaintiffs. In order to establish the defendant negligently made the statement, the Plaintiff must prove that the Defendant failed to verify the truth of the statement. A. Plaintiff Perry is not a public figure. Plaintiff did not thrust herself into the forefront of a controversy. She was asked to gather citizen reports. The LCHTA was a public site also maintained by General Baxter. 21 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 21 of 40 At the beginning Plaintiffs original petition filed in Comanche County set forth several causes of action against the Defendant. The Oklahoma State Board of Vet Medical Examiners shall have the powers and duty to regulate the practice of veterinary medicine sec. 698.7. The Board can also investigate citizens’ complaints. A citizen complaint is defined as follows: OK.Vet Practice Act. 775:15-1-2. p 16 “Citizen complaint” refers to a written or oral of complaint from any person of a possible violation of the Act or rules of the Board and which is then available for investigation by the Board’s staff. Investigations is defined as follows: 775:15-3-1 “Investigation” The staff shall investigate all facially credible complaints over which the Board would reasonable have jurisdiction. In addition, the Staff may refer complaints to other entities, such as the Oklahoma State Bureau of Investigation, Oklahoma Bureau of Narcotics and Dangerous Drugs, other law enforcement agency or appropriate district attorney, for action when such other entity has jurisdiction. The next process is the President, Secretary/Treasurer or designee may issue a citation. Once a citation is issued a licensed person then undergoes an individual proceeding. 22 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 22 of 40 A “Defendant” is a person against whom an individual proceeding has been initiated. It is clear in the case at hand that; (1) The plaintiffs were not licensees subject to an individual proceeding under the ACT. (2) The Plaintiffs were not “Defendants” because they were not person against whom an individual proceeding was initiated. (3) There was no formal complaint filed with the Board. 775: 15-3-3. (4) The was no citation issued. 775:15 -3-3. (5) No complaints were referred to other agencies for prosecution. Defendant admitted in his deposition that he “dropped off” copies. The facts are clear that there was no proceeding and Plaintiff acted far outside the scope of his authority by delivering an “unsolicited” copy of his false police report to the various individuals and agencies. The law clearly requires at sec 698.29(A) that the OSBVME and its employees shall keep confidential all information obtained (except in D) D. At the discretion of the Board. No request was made by any law enforcement agency for a copy of the report, and also no request was made to investigate a crime. 23 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 23 of 40 No state or territory was given in the report. The “black box” warning makes Defendant’s actions even more egregious. Defendant willfully violated this warning by voluntarily and without being requested to do so, “dropped off” a copy of the report knowing full well he was not authorized to do so and knowing full well that he was acting outside the scope of his employment and that the report would harm the Plaintiffs. Further, there is no evidence that the report was loaned to any agency or individuals. The fact that the report may have been released to KSWO News does not relieve Defendant of liability. The definition of “Publish” as used in the law of Libel and Slander, means communicating the statement in issue to a third person other than the plaintiff (the individual whom the allied defamatory statement concerns). The definition of “libel per se.” - broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/ her profession, having a loathsome disease (like syphilis) or dishonesty in business. Defendant is also not relieved from liability by claiming he gave the report to someone else (Jensen) and that person distributed the false report. Defendant is liable for the republishing of the report tot he media. Defendant cannot successfully defend his position by stating he warned not to disseminate the report and someone else disseminated the report. Further, as explained above, the report was not distributed a per the law I.e. at the request of law enforcement. 24 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 24 of 40 PROPOSITION II (response to PROP III - Defendant omitted a Prop II) Defendant slandered Plaintiffs in statements made to citizens. The affidavit of Lizzy Druvenga clearly indicates Defendant made slanderous statements about Plaintiffs. Defendant did not find criminal activity by Plaintiffs. In his deposition Defendant was questioned several times to provide evidence of the crimes he claims were committed. Defendant could provide no evidence other than to say “it’s in my report.” PROPOSITION IV Plaintiff Perry’s claim of False Light/Invasion of Privacy. A. Elements of False Light/Invasion of Privacy are: Plaintiffs can prove Defendant disseminate the report without justification or solicitation and with actual malice. Defendant knew the report was not to be distributed unless it was requested by law enforcement and there was a criminal investigation. No law enforcement agency requested the report and no criminal charges were pending against Plaintiffs. Defendant is responsible for a report that gets disseminated because it was not privileged. The fact that the report had a warning not to distribute is unfounded. If this were allowed, anyone could write a libelous document and put a do not distribute disclaimer. The Report was first published when it was circulated to individuals who never even requested a copy of the report. In Defendants own words he “dropped off a copy” at the 25 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 25 of 40 Comanche County District Attorney’s office. See Depo____. There was no testimony of an ongoing criminal investigation. For a private figure to state a claim for defamation, he or she must show: “(1) A false and defamatory statement, (2) and unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special dame [per se], or the existence of damage [per quod].” White v. City of Del City, 2012 OK CIV APP 5, 21, 270 P.3d 1209. “As communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Herbert v. Christian Coal., 1999 OK 90, n 4, 992 P.2d 322. “In order for a false segment to be defamatory, it must concern the plaintiff” Gonzalez v. Sessom, 2006 OK CIV APP 61, 12, 137 P.3d 1245. The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported. [Emphasis added.] If we assume the published information is of public concern and could be said to have resulted from judicial or other official proceeding and therefore constitutes “a report” subject tot eh fair report privilege, the question of whether the report was fair, accurate and complete remain a fact question to be determined. Stewart v. NYT Broadcast 26 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 26 of 40 Holdings, LLC, 2010 OK CIV APP 89, 19, 240 P.3d 722 (“Whether the reports were substantially accurate presented a question for the jury to determine.”). O.S. 2011 sec.1441. “A publication is libelous per se (when the defamatory impact is apparent on its face) if it exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation.” Gaylord Entm’t Co. v. Thompson, 1998 OK 30, 35, 958 P.2d 128 (quoting 12 O.S. 1991 sec. 1441). “To determine whether a publication is libelous per se, the writing must be measured by its natural and probable effect upon the mind of the average lay reader.” Id. 35. “A publication is deemed libelous per quod if the words are reasonably susceptible of both a defamatory and an innocent meaning,” meaning that extrinsic facts are required to show a defamatory meaning. Id. 35. “Whether a writing is libelous per se presents an issue of law for the trial court’s resolution.” Id. “A fact determination, if necessary to decide whether a publication is libelous per quod, is for the the jury.” Id. (An example is fundraising.) Restatement (Second) of Torts sec. 580(B) (1977) provides: One who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but on if, he (a) know that 27 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 27 of 40 the statement is false and that it defames the other, (b) acts in reckless disregard of these matters, or acts negligently in failing to ascertain them. As discussed previously in this Libel Claim section, for a private figure to state a claim for defamation, he or she must show “(1) a false and defamatory statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage [per se], or the existence of special damage [per quod]. “White v. City of Del City, 2012 OK CIV APP 5, 21, 270 P.3d 205 (quoting Tanique, Inc. v. State ex rep. Okla. Bureau of Narcotics and Dangerous Drugs, 2004 OK CIV APP 73, 29, 99 P.3d 1209). PROPOSITION V Defendants have stated a cause of action for harassment and deceit. Deceit: is defined under Oklahoma law as follows: Defendant knew his report was false. Defendant was recently deposed and asked for evident indication Plaintiffs were defendants and stalkers as Defendant accused Plaintiffs and others of several felonies including stalking, computer crimes as well as several misdemeanors. The affidavits of Dr. Fiorillo and Lizzy Druvenga show that Defendant lied in his re port specifically stating that Plaintiff Perry’s personal veterinarian, Dr. Fiorillo, denied any complication associated with Calcium Chloride. Additionally, Defendant had interviewed Lizzy Druvenga and was told by Druvenga the same exact info that Plaintiff Perry submitted. Knowing the info was true, Defendant deceitfully 28 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 28 of 40 claimed Perry misstated the fact and nothing she said was true. Report _____. So to surmise , Defendant suggested facts known by him not to be true by one who does not believe it to be true. The affidavits and testimony of Defendant clearly show evidence of deceit and harassment and create a question of fact for the jury. Defendant harassed the Plaintiffs causing the undo stress. The acts of Defendant were unjustified and retaliatory. PROPOSITION VI Defendant was acting outside the scope of his authority for the majority of his investigation and is personally liable for his conduct. Defendant cannot hide from liability behind the cloud of the GTCA. Although Defendant did approach the situation in Lawton under the authority of the OSBVME he intentionally performed actions that were not within the scope of his authority. These acts included, but are not limited to the following: • Calling Plaintiffs and others “defendants” when no crime was committed. • Accusing Plaintiffs of stalking. • Violation of the computer crimes act. • Harassment • Obstruction of Justice of a Public official as well as several other made up crimes. 29 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 29 of 40 Pursuant to GTCA the definition of Scope of employment means: “Performance by an employee acting in good faith within the duties of the employee’s office or employment. Title 51 O.S. sec. 152(12). The key terms are acting in good faith within the duties. Defendant Fullerton was not actin in good faith. The evidence submitted heron show he lied. Oklahoma Veterinary Practice Act sec. 69819a CITATION AND FINE A. 1. If upon completion of an investigation, the Executive Director of the State Board of Veterinary Medical Examiners has probable cause to believe that a licensed veterinarian or any other person has violated provisions of the Oklahoma Veterinary Practice Act or rules promulgated thereto, the Executive Director may issue a field citation to the licensed veterinarian or other person, as provided in this section. Each field citron shall be in writing and shall describe with particularity the nature of the violation, including but not limited to a reference to the provision of the Oklahoma Veterinary Practice Act. PROPOSITION VII THE OKLAHOMA VETERINARY PRACTICE ACT DOES NOT PROTECT DEFENDANT FROM LIABILITY FOR HIS ACTIONS. Defendant claims he is protected by Title 59 sec. 698.16 (b) because he did not file a false report. Plaintiffs allege the report was false and have submitted evidence supporting this 30 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 30 of 40 fact. Additionally, whether the report is false, malicious, or contains false statement is a question of fact for the jury. It is not clear whether Title 59 Sec 698.16 (b) includes investigators for the OSBVME in its definition. However, what is clear is that Defendant is liable for the false information continued in his report. It is apparent that the false information submitted in the report was known to Defendant because two independent witnesses Fiorillo and Druvenga prove he was not telling the truth in his own deposition testimony shows he knew the information in his report was not truthful. As such, Defedant does not have the luxury of hiding behind the GTCA. PROPOSITION VIII PLAINTIFFS CAN SUPPORT THEIR FIRST AMENDMENT CLAIMS A. Defendant acted in bad faith. The three elements to prove a First Amendment Claim are: (1)Plaintiffs … (2)that… (3)that… Defendant wants to prohibit Plaintiffs from speaking freely and from associating with likeminded citizens in a facebook forum, from petitioning their local government, from volunteering, from entry to a public building, from serving on a mayor’s commission, from having any input whatsoever regarding humane treatment of animals at a public animal shelter. Defendant had a vendetta against the Animal Birth Control Clinic of Lawton and anyone affiliated, or believed to be affiliated with ABC. This goes back over twenty years when founders of the non-profit clinic provided evidence to the FTC that eventually led to the OSBVME being cited for deceiving and harming the public by 31 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 31 of 40 restricting competition. Historically the OSBVME had threatened to revoke the license of any veterinarian that worked at the ABC Clinic. This FTC decision changed the landscape in Oklahoma, allowing non-profit spay/neuter clinics to exist. Over the years the relationship with the ABC Clinic has been contentious. Defendant used similar words in his Report that citizens “did harm and deceive the public” using his authority to attempt to disrupt the practice of a non-profit neuter/spay clinic and retaliate against those he believed were associated. Additionally, Defendant acted in bad faith because he had a hidden personal agenda. Defendant was a colleague of Ruth Steinberger, who brought the experimental calcium chloride castration procedure to LAW and is involved in research of the now Trademarked drug “Calchlorin”. Steinberger was promoting the calcium chloride “Calchlorin” castration procedure through the Lawton Animal Shelter. When citizens complained regarding the deaths and complications, Defendant Fullerton retaliated against shelter employee whistleblowers and citizens who criticized the procedure. Defendant acting in bad faith, launched a full fledged investigation into Plaintiffs and others and attempted to frame them with multiple felonies and misdemeanors. Bad faith is shown by the fact that Defendant was supposed to be investigating LAW and despite this, Defendant admitted investigating Plaintiffs and others to the extent that there are only two pages out of his forty page report that do not mention, attack, humiliate and libel Plaintiffs and other citizens. 32 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 32 of 40 Bad faith is shown by the fact that Defendant said Plaintiffs should be banned from a public place. Bad faith is shown on the three pages of charges Defendant recommends even though he had no authority to recommend the charges. B. Defendant’s actions amount to a chilling injury of Plaintiff’s First Amendment Rights. Plaintiffs dispute the fact claimed by Defendant that he did nothing to retaliate. Defendant recommended Plaintiffs be banned from the shelter and was effective in doing so. Defendant published that Perry and Wilson should be banned and this was published in a large headline in the Lawton paper. Plaintiffs were concerned that if they went to the shelter they would eventually be framed with a crime and Defendant or someone would arrest them. See Perry and Wilson affidavits. Defendant published his trumped up charges including stalking, a charge he had no evidence of in his deposition. Being banned due to the fact that Plaintiffs were petitioning their local government, and speaking publicly about inhumane conditions at the shelter was a willful act of retaliation and obstruction of Plaintiffs’ Freedom of Speech. 42 U.S.C. sec. 1983. Plaintiff Perry promoted and attended LAW’s first adoption event prior to the release of the report. Following the release of the report, Plaintiff Perry did not feel it was safe for her to be on the property. Plaintiff Wilson volunteered putting new dog beds together at the shelter until it became clear she may suffer further retaliation and was told by Assistant City Manager Jim Russell that our names would not be cleared in the media as citizens who were blocked from the shelter, due to the fact they they may “need to do so in the future.” 33 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 33 of 40 Defendant acting as a state police officer said he had authority to make arrests and to go on raids, ect. C. Plaintiffs were retaliated against for criticizing LAW and petitioning their local government for improvements. Thirty-eight pages from a forty page report of attacking, ridiculing, and accusing Plaintiffs of crimes, insinuating Plaintiffs fraudulently raised funds, claiming Plaintiff Perry knew nothing of medical records, lied about her certification, lied about her career, and labeled Plaintiffs “defendants” when Defendant knew better, claiming Plaintiffs committed numerous felonies and misdemeanors when not one victim ever complained of said conduct, is a substantial showing Plaintiffs were prevented from making complaints. The right to associate was violated in that Defendant published that the Mayor’s Commission on Animal Welfare, on which Plaintiff Perry served, was destined to fail because the commission included members of LCHTA. The mayor’s commission was disbanded temporarily. It was made clear to Plaintiff Perry that she would no longer be allowed to serve on the commission due to the recommendations of Defendant and what was published in his false report. Defendant violated Plaintiffs right to assemble by making it appear that the rallying of citizens around a common issue of concern was a crime. Defendant went as far to claim there was no common issue of concern, calling numerous citizen complaints as simply Plaintiffs unfounded allegations. 34 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 34 of 40 PROPOSITION IX DEFENDANT IS NOT ENTITLED TO QUALIFIED IMMUNITY. Defendant is not protected by qualified immunity for his violation of Plaintiff’s First Amendment Rights of Freedom of Speech, Freedom to Associate, Freedom to Assemble, the Right to Petition. Further, Defendant is not protected by qualified immunity from his multiple forms of retaliation against Plaintiffs for exercising their First Amendment Rights. Plaintiffs have shown that Defendant violated these reports throughout this case and with the exhibits attached hereto. This creates a question of fact specific inquiry. Anderson v. Creighton 483 U.S.-635, 639-640 (1987). Defendant also cite this case in their brief so it is clear and both parties agree there is a question of fact that must be decided by a prier of fact. Defendant attacked Plaintiffs in every way possible. Plaintiff called Plaintiffs conspirators, defendants, thieves, liars and criminals. Defendant said to ban Plaintiffs from a public place. Defendant has been a peace officer for over twenty years and he knew what he was doing. In fact the OSBVME was sued in a retaliation case in which an employee was fired for reporting that Fullerton was running around like Rambo all over Oklahoma trying to be the cop of everything, getting involved in investigations outside the scope of the Vet Board, speeding in his state vehicle and carrying a side arm when 35 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 35 of 40 visiting veterinarians. Dixon warned that Fullerton was out of control. Dixon v. OSBVME. The multiple forms of retaliation against Plaintiffs was done as a means to stop Plaintiffs from associating and speaking out about the animal shelter, and the treatment of animals in the city’s care. Plaintiffs have filed an action against the OSBVME for the acts within the scope of Defendants employment. Defendant claims he was acting within the scope of his authority, so the OSBVME should be held responsible for act committed by Defendant within the scope of his authority. A particular circumstance may involve an employee acting within the scope of employment for some acts and outside the scope for others. See DeCorte v. Robinson, 1998 OK 87, 13-14, 969 P.2d 358, 362, (jury verdict against city and its employee was not necessarily inconsistent when the jury could have determined that some of the challenged acts were within a scope of employment and others not). Wirtz emphasized that the liability of the State is exclusive and in place of all other liability of the employee. However, section 153(A) states, in part, that: “The state or a political subdivision shall not be liable under the provision of this act for any act or omission of an employee actin outside the scope of his employment.” 51 O.S.2001 sec. 153A 36 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 36 of 40 The court of appeals in Reeves v. Melton, 1973 OK CIV APP 22, 518 P.2d 57, found a woman who was harassed over payment for a TV-stereo presented competent evidence of breach of the peace and trespass and intentional infliction of extreme mental distress. Id. at 62. The Governmental Tort Claims Act, GTCA, (51 O.S.2001sec. 151 et seq.), makes a distinction between a government employee acting within the scope of employment and one who was not. Martin v. Johnson, 1998 OK 127, 28, 975 P.2d 889, 895; Carswell v. Oklahoma State University, 1999 OK 102, 20, 995 P2d 1118, 1123. An act of an employee is not in the scope of employment is relieved from private (individual) liability for tortious conduct, but when an employee acts outside the scope of employment the political subdivision is relieved from liability. Martin v. Johnson, 1998 OK 127, 28, 975 P.2d 889, 895. The concept of scope of employment is thus tied to whether the employee or the government entity may be liable for a particular act. Pursuant to Article 2, Section 22 of the Oklahoma Constitution, “[e]very person may freely speak, write of publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liber of speech or of the press…” The free speech provision of the Oklahoma Constitution is broader and more protective of free speech right than is the First Amendment of the United States Constitution. See Edmondson v. Pearce, 91 P.3d 605, 633-634 n.40 (Okla. 2004) (observing “that the Oklahoma Constitution is more protective of speech than is the United States Constitution”) (internal citation omitted). Specifically, the Oklahoma 37 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 37 of 40 Constitution’s protection of free speech is far more broadly worded than the First Amendment’s restriction on governmental interference with speech.” Gaylord Entm’t Co. v. The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers, but only words that inflict or tend to incite immediate breach of peace. (citing City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) and Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). In Storey v. Taylor, 696 F.3d 987 (10th Cir. 2012), officers responded to a report of a loud argument at Mr. Storey’s residence. When officers arrived they did not hear an argument and had no other reason to believe that a crime had been committed. (5) The officers knocked on the door and Mr. Storey answered, but refused to come outside. Officers then pulled Mr. Storey outside of his house, handcuffed him and placed him under arrest and charged with resisting, evading and obstruction of an officer. Mr. Storey sued the city and the officers under section 1983claiming his Fourth Amendment Rights had been violated. the Tenth Circuit Court of Appeals agreed with Mr. Storey and found that the problem with the arrest is that it relies on the assumption that the order to exit the house was lawful. Similarly here Defendant’s conduct was not lawful so he does not get qualified immunity. Defendants incorrectly claim in their brief that Fullerton’s investigation was initiated due to complaints made by Plaintiffs. 38 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 38 of 40 Defendant consistently refers to Plaintiffs to suggest Plaintiffs Perry and Wilson were public figures. However, Defendant provided no reference to Wilson. In Gertz, an attorney sued a publisher of a magazine who wrote an article claiming the attorney was a communist. The publisher argued the attorney was a public official or a public figure and thus “entitled to invoke the privilege enunciated in New York Times.” In refusing to find that the lawyer fell into either of these designations, the Court effectively outlined the public figure doctrine. The Supreme Court relied on two major rationales to delineate the Gertz doctrine: public figures “voluntarily exposed themselves to increased risk of injury” and had “significantly greater access to the channels of effective communication.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45 (1974). Each social media user has access to the same basic features as every other user on the same social media platform. See Boyd & Ellison, supra note 11, at 211-14. Most recently, social media use has helped proliferate information about the human rights violation in Syria. See Anthony Shidid, With Internet, Exciles Shape World’s Image of Syria Revolt, N.Y. Times, Apr. 24, 2011 at A1. These incidents provide only a few examples of the numerous occasion in which social media use has played a key role in an important social or political event or movement by helping organize or disseminate ideas throughout the group. See id. at 211, 221 (“On many of the large [social networking 39 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 39 of 40 sites], participants are not necessarily ‘networking ‘ or looking to meet new people; instead, they are primarily communicating with people who are already a part of their extended social network…. Although exceptions exist, the available research suggests that most [social networking sites] primarily support pre-existing social relations.”). As a result, courts should avoid policies that might chill speech on social media platforms when deciding how to apply doctrine social media platforms. CONCLUSION: A material issue of fact exists. Summary judgement should be denied. Respectfully submitted, /s/Daniel M Delluomo Certificate of Mailing Tim Bunson This document was emailed on this 24th day of Sept 2018 /s/Daniel M Delluomo 40 Case 5:16-cv-01210-M Document 59 Filed 09/24/18 Page 40 of 40