Powell v. Miller et al

RESPONSE in Opposition re MOTION to Dismiss Complaint

W.D. Okla.May 10, 2011

Page 1 o f 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA PARIS LaPRIE ST POWELL, ) ) Plaintiff, ) ) vs. ) Case No. C IV-10-1294-D ) ROB ERT BRA DLEY MILLE R, ) et al., ) ) Defendants. ) PLAINTIFF PARIS POWELL S RESPONSE TO MOTION TO DISMISS OF DEFENDANT DURBIN, LARIMORE, AND BIALICK, BRIEF IN SUPPORT I. STANDARD S FOR ADJUDICA TING MOTION S TO DISMISS AA complaint is suff icient if it contains a shortA complaint is sufficient if it contains a short anA complaint is suffic ient if it contains a short and plain statement of the c laim showing that the pleader is entitled to relief. Federal Rule of Civil Procedure 8. AllAll avermAll avermeAll averments in the complaint must be construed in the light most favorable to the plaintiff . Scheuer v. Rhodes, 416 U.S. 232 (1974). AlthoughAlthough a Court need notAlthough a Court need not accept as true allegations consistingAlthough a Court need not accept as true allegations consisting of labels, conclusions, oror formulae, factual allegations which are plausible are suor form ulae, factual allegations which are plau sible are sufficient. Bell Atlantic Corp. v. Twombly,Twombly , 550 U.S. 554, 555, 5550 U.S. 554, 555, 56550 U.S. 554, 555, 562-63 (2007). The allegations need not disclose a probabilityprobability that the Plaintiff is entitled to relief, but must contain enougprobability that the Plaintiff is entitled to relief, but must contain enough fprobability that the Plaintiff is entitled to relief, but must contain enough fact to raise a Page 2 o f 8 reasonable expectation that discovery w ill reveal [ sufficient] evidence ... Id. at 556-57. II. SECTION 1983 CLAIM AGAINST DURBIN, LARIMORE, AND BIALICK A. Particularity of Pleading PlaintiffPlaintiff Powell has pleaded that Defendant R obert Bradley Miller Defend ant Robe rt Bradley M iller continDefendant Robert Bradley Miller continued his maliciousmalicious p rosecution of Paris Powellmalicious prosecution of Paris Powell as part ofmalicious prosecution of Paris Powell as part of his work at Durbin, Larimore, and Bialick. Plaintiff alleged: Mr.Mr. MillerMr. Miller utilized the offices and employees of Durbin, Larimore, andMr. Miller utilized the offices and employees of Durbin, Larimore, and Bialick inin thein the pu rsuit of the continued and wrongful incarcera tion of P aris Pow ell. in the pursu it of the con tinued and wrongf ul incarceratio n of Paris P owell. M illein the pursuit of the continued and wrongful incarceration of Paris Powell. Miller usedused office equipmentused off ice equipment and of fice staff toused office equipment and office staff to assist him in communicating his requests for favorable favorable treatment of Derrick Smifavorable treatment of Derrick Smith. Thefavorable treatment of Derrick Smith. These communications w ere necessary to Miller sMiller s attempts,Miller s attempts, for aMiller s attempts, for a time successful, to keep hidden the fact that Powell s jury had beenbeen misinformed regardingbeen misinformed regarding Smith sbeen misinformed regarding Smith s reliability. The communications were necessary toto Miller s attemptto Miller s attempts to Miller s attempts, fo r a time successful, to keep hidden the fact that Powell s conconvictionsconvictions and dea th sentence were unreliable and in contraven tion of the Fourteenth Amendment to the federal constitution. (Complaint, ¶ 58) BeBecBecauseBecause these allegations plausibly suggest that the D errick Smith/Paris Pow ell activityactivity was that ofactivity was that of the law firm, and not justactivity was that of the law firm, and not just of Mr. Miller independently, they are sufficient to withstand a motion to dismiss. TheThe complaint further alleges that Miller was acting, during the time period he was employedemployed at Durbin, Larimore, and Bialick in conceremployed a t Durbin, L arimore, and Bialick in c oncert wemployed at Durbin, Larimore, and Bialick in concert with employees of the Oklahoma CountyCounty District AtCounty District AttorneyCounty District Attorney s Office in assuring Paris Powell s continued wrongful incarceration. (Complaint, ¶ 60) Therefore the allegations are similar to facts found sufficient to withstand Page 3 o f 8 summary judgment in Lusby v. T.G .&Y. Stores , Inc., 749 F.2d 1423, 1432-33 (10th Cir. 1984) vacated on other grounds, 474 U.S. 805 (1985): T.G. &Y. contends that the trial court erred in submitting to the jury the plaintiff s §1983 claims against it because plaintiffs offered no evidence that T.G.&Y. acted under color o f state law. T .G.&Y. is not liable for a civil rights violation simply because it employed Gent. We have held that a private entity that employs an off-duty police officer is not vicariously liable for its employee s deprivations of citizens civil rights. [citations omitted] Nevertheless, T.G.&Y. and its managers acted under color of state law within the meaning of §1983 because they were acting in concert with the Lawton police according to a customary plan for dealing with shoplifters that involved a constitutionally forbidden rule or procedure. The allegations stated in Paris Powell s complaint are sufficient to raise a reasonable expectation that discovery ... (Twombly at 557) will lead to evidence proving that Defendant Durbin, Larimore, and Bialick, like Defendant T.G.&Y., was engaged in the unconstitutional activity as an event of the company, not as event of the individual separa ted f rom the company. Particularly, where, as here, most facts regarding the law firm s involvement in the case will be within the peculiar knowledge of the law firm, the allegations as stated are suff icien t to warrant discovery to supp ly the details of the fi rm s act ivity. In the alternative, the Plaintiff requests permission to amend the complaint and states that upon amendment, these additional facts, at a minimum could be alleged: The law firm main tained a file regarding the Paris Pow ell/Derrick Smith situation and referred to the file by number when responding to an inquiry from the Oklahoma Bar Association. Page 4 o f 8 Members of the law firm, including lead partner Gerald Durbin, attended a substantial part of the federal court evidentiary hearing in the habeas corpus case relating to Paris Powell s death sentence. Mr. Durbin and at least three other persons associated with the firm were present during Mr. Miller s testimony in that case. While Paris Powell s habeas case was pending, consultation with personnel from the Oklahoma Attorney General s Office occurred at the offices of Durbin, Larimore, and Bialick . B. Color of State Law Contentions Plaintiff Powell s complaint alleges that Mr. Miller, acting as an employee of Durbin, Larimore, and Bialick, was acting in concert with employees of the Oklahoma County District Attorney s Office in suppressing exculpatory evidence and perpetuating false evidence which kept Paris Powell wrongfully convicted. (Complaint, ¶ 60) It is not necessary for an entity to be governmental itself to be liable under 42 U.S.C. § 1983. Section 1983 liability can occur if the entity acts in concert with a governmenta l actor. Dennis v. Sparks, 449 U.S . 24, 27 (1980). This jointly liable private entity does not necessarily have to be an individual. A corporate private entity can also incur section 1983 liability. See Lugar v. Edmond son Oil Co., Inc., 457 U.S. 922 (1983). See also Lusby v. T.G .&Y. Stores , Inc., 749 F.2d 1423, 1432-33 (10th Cir. 1984) vacated on other grounds 474 U.S. 805 (1985). Page 5 o f 8 C. Respondeat Superior Liability Plaintiff agrees that respondeat superior is not a correct method of describing the way in which a corporation may incur section 1983 liability. Even though the phrase respondeat superior was used in Mr. Powell s complaint, the complaint also contains facts which create sufficient infe rence of the law firm s own involvement in Mr. Powell s wrongful continued incarceration for further discovery to be warranted. D. Immunity Defendant Durbin has cited no authority that a private entity may take advantage of immunity afforded to a governmental entity w ith which it acts . The authority is not on Durbin s side. A private actor may be liable even if the governmenta l actor has immunity. Dennis v. Sparks, 449 U.S. 24, 27 (1980). E. Negligence Plaintiff makes no contention that section 1983 liability can be predicated solely on negligence. Plaintiff Powell s negligence and section 1983 claims are separate. III. NEGLIGENCE AND RESPONDEAT SUPERIOR CLAIMS The facts alleged in paragraph 58 of the complaint create a plausible case that Mr. Miller was acting within the scope of employment when he utilized the offices and resources o f Durbin , Larimore , and Bialick to assist in keeping Paris Powell unconstitutionally incarcerated. Page 6 o f 8 Twombly (at 556-57) requires the Plaintiff to state a plausible case that his conten tions are accura te, not tha t he be able to prove his case in detail prior to discovery. In the alternative, Mr. Powell requests leave to amend to include, at a minimum, the allegations, mentioned above, that consultation with the prosecution occurred at Durbin offices, that Durbin employees including the lead partner were present at the evidentiary hearing in the habeas case, and that Durbin maintained a file regarding the Derrick Smith/Paris Powell case. IV. STATUTE OF LIMITATIONS Defendant Durbin claims the case was filed too late because it was not brought within one year of the time the charges against Paris Powell were dismissed. However, the statute of limitations for a section 1983 case predicated on malicious prosecution is tw o years from the time of dismissal. Beck v. City of Muskogee Police Department, 195 F.3d 553, 560 (10th Cir. 1999). Since, as Defendant Durbin states, the charges were dismissed on October 2, 2009, the statute has not yet expired. CONCLUSION For the foregoing reasons, Plaintiff Paris Powell requests that the Court deny Defendant Durbin, Larimore, and Bialick s motion to dismiss. In the alternative, to the extent the Court finds any deficiencies in pleading, Plaintiff Powell requests to be given leave to replead. Page 7 o f 8 Respectfully submitted, /s/Mark B arrett MARK BARRETT , OBA # 557 P.O. Box 896 Norman, Oklahoma 73070 405-364-8367 405-366-8329 (fax) barrettlaw@sbcglobal.net ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE II certify that on this 10thh day of May, 2011,day of May, 2011, I electronically transmitted theday of May, 2011, I electronically transmitted the attached documentdocument to Clerk of Court using the ECFdocument to Clerk of Court using the ECF System for filing and transmittal anddocument to Clerk of Court using the ECF System for filing and transmittal and also noticed thethe following ECFthe following ECF registrants: John Jacobsen, Assistant District Attorney, Oklahomathe following ECF reg istrants: John Jacobsen , Ass istan t Dis trict A ttorney, Oklahoma City, Oklahoma,Oklahoma, johjac@oklahomacounty.org.; Murray Abowitz, P.O ; Murray Abowitz, P.O.; Murray Abowitz, P.O . ; Murray Abowitz, P.O. Box; Murray Abowitz, P.O. Box ; Murray Abowitz, P.O. Box 1; Murray Abowitz, P .O. Box 1937, Oklahoma City, Oklahoma,Oklahoma, 73101, mainmail@abowitzlaw.com; George C orbyn George Corbyn, 211 George Corbyn, 211 N . Robinson Ave., SuiteSuite 1910, Oklahom a City, Ok lahoma 73102, gcorbyn@corgcorbyn@corbynhamgcorbyn@corbynhampton.com; Kayce Gisinger,Gisinger, P .O. Box 1937, Oklahoma C itGisinger, P.O. Box 1937, O klahom a City, OGisinger, P.O. Box 1937, Oklahom a City, Ok lahoma 73101, mainmail@abowitzlaw.com; AmyAmy Pierce , 211 N. Robinson, Suite 1910, Oklahoma City, OklaAmy Pierce , 211 N. Robinson, Suite 1910, Oklahoma City, Oklahoma 73102Amy Pierce , 211 N. Robinson, Suite 1910, Oklahoma City, Oklahoma 73102, apierce@apierce@corapierce@corbynhampton.com; Amy Steele, P.O. Box 1937, Oklahoma City, Oklahoma 73101,73101 , ars@abowitzlaw.com; Victoria Tindall, Oklahoma Attorney General s Office, Victoria Tindall, Oklahoma Attorney General s Office, 313 N.E.N.E. 21st St., Oklahoma City, St., Oklahoma City, Ok lahoma 73105, victoria.tindall@oag.ok.gov; John Hadden, OklahomaOklahoma Attorney General s Office, 313 N.E. 21st St., St., Oklahoma St., Oklahoma City, Oklahoma 73105, john.hadden@oag.state.ok.us. /s/ Mark B arrett MARK BARRETT Page 8 o f 8