Shotwell v. Zumwalt et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DONNA SHOTWELL, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-005-JFH-GLJ
)
SHELLEY ZUMWALT, Individually 	)
and in her official capacity As 	)
Executive Director the Oklahoma 	)
Department of Tourism and 	)
Recreation, UNITED STATES ARMY 	)
CORPS OF ENGINEERS, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter comes before the Court on the motion of Defendant Shelley Zumwalt,
in her individual and official capacity as Executive Director of the Oklahoma Department
of Tourism and Recreation, to dismiss the Second Amended Complaint against her
pursuant to Fed. R. Civ. P. 12(b)(6). 	On July 15, 2025, the Court referred this case to the
undersigned Magistrate Judge for all further proceedings in accordance with jurisdiction
pursuant to 28 U.S.C. § 636. 	See Docket No. 31. 	For the reasons set forth below, the
undersigned Magistrate Judge recommends that Defendant Shelley Zumwalt’s Motion to
Dismiss Plaintiff’s Second Amended Complaint and Brief in Support [Docket No. 38] be
GRANTED.
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PROCEDURAL HISTORY & BACKGROUND
Plaintiff originally brought this action against The State of Oklahoma, ex rel.,
Department of Tourism and Recreation (“ODTR”) and Shelley Zumwalt, individually and
in her official capacity as Executive Director of ODTR. 	See Docket No. 2. 	Plaintiff
subsequently amended the Complaint to add Defendant United States Army Corps of
Engineers (“Corps of Engineers”).1 	See Docket No. 14. 	On August 4, 2025, Plaintiff’s
claims against ODTR were dismissed with prejudice and the claims against Ms. Zumwalt
were “dismissed without prejudice, and Plaintiff may file an amended complaint with
respect to her due process claim, no later than August 15, 2025.” 	See Docket No. 34 &
No. 35.
On August 15, 2025, Plaintiff filed her Second Amended Complaint, asserting
claims on behalf of herself against Ms. Zumwalt individually and in her official capacity
and the Corps of Engineers. See Docket No. 36. Plaintiff’s claims arise out of a lease she
and USA Docks, Inc. entered into with ODTR for a premises in Arrowhead State Park on
Lake Eufaula to operate a business providing a marina and related services (“Lease”). See
Docket No. 36, ¶¶ 6, & 8-9. 	ODTR leases the property on which the leased premises is
located from the Corps of Engineers. Id., ¶ 7. Plaintiff alleges that after inspections by the
Corps of Engineers and Oklahoma State Parks Director of Business Services in October
2022, she was given notice of certain lease violations and, due to health and safety
concerns, was given 30 days to cure the violations. Id., ¶¶ 12-13. Plaintiff further alleges
1 Although the Corps of Engineers was purportedly served with summons in June 2025, it has not
entered an appearance or otherwise filed any responsive pleading.
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that ODTR and Corps of Engineers conducted follow-up inspections in December 2022
and March 2023 during which more deficiencies were found, and it was noted that previous
deficiencies had not been corrected. 	Id., ¶ 14. 	Plaintiff does not attach any of the
deficiency notices to her Second Amended Complaint. Plaintiff alleges that in a Notice of
Termination letter dated April 14, 2023, “Defendants” notified Plaintiff that due to the
ongoing issues surrounding the Lease, it was terminating the Lease as of May 11, 2023
(“Termination Letter”). Id., ¶ 15.
Plaintiff alleges the Termination Letter further states that all personal property must
be removed from the leased premises by May 11, 2023 and that any personal property
remaining as of May 12, 2023 will be considered abandoned and will become the property
of the Department. 	Id., ¶ 16. 	Plaintiff alleges that she spent several thousand dollars
correcting the deficiencies noted in the October 2022, December 2022 and March 2023
inspections. Id., ¶ 18. The Second Amended Complaint is silent as to what, if anything,
happened after May 11, 2023, including whether the Lease was terminated and/or any of
Plaintiff’s property was declared abandoned or seized by ODTR.
Plaintiff asserts one count in her Second Amended Complaint for violation of her
1983 Civil Rights – Procedural Due Process. 	See Docket No. 36, p. 4. 	As it relates to
Zumwalt, the Second Amended Complaint alleges the following facts:
1) 	Plaintiff was the “owner of the property” that Zumwalt and
Corps 	of 	Engineers 	“effectually 	took” 	by 	intentionally 	refusing 	to
acknowledge that she was not in violation of the Lease;
2) 	Plaintiff 	corrected 	all 	deficiencies 	identified 	in 	a 	timely
manner;
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3) 	The taking of Plaintiff’s property fails to promote substantial
governmental interests and has the effect of depriving Plaintiff of the
economic value of her property;
4) 	Zumwalt’s termination of the Lease is “in effect a reverse
condemnation or inverse condemnation” and amounts to a governmental
taking of private property without just compensation; and
5) 	Zumwalt denied Plaintiff the right to correct deficiencies to the
property as permitted by the Lease.
Id., ¶¶ 20-26.
Analysis
I. 	Legal Standards
Federal Rule of Civil Procedure 8(a) requires Plaintiff to state her claims intelligibly
to give fair notice of the claims to opposing parties and the Court. Mann v. Boatright, 477
F.3d 1140, 1148 (10th Cir. 2007); Monument Builders of Greater Kansas City, Inc., v.
American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). 	Imprecise
pleadings undermine the utility of the complaint and violate that purpose of Rule 8. 	See
Knox v. First Security Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952). 	Additionally,
individual defendants are not to be lumped together as a group, but should be treated as
individuals, each with the Plaintiff’s own claims against each individual defendant, based
on each individual defendant’s own behavior. See Pahls v. Thomas, 718 F.3d 1210, 1225
(10th Cir. 2013) (because § 1983 is a “vehicle[ ] for imposing personal liability on
government officials, we have stressed the need for careful attention to particulars,
especially in lawsuits involving multiple defendants.”); Robbins v. Okla. ex rel. Dep’t of
Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008) (stating complaint must “make clear
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exactly who is alleged to have done what to whom, to provide each individual with fair
notice as to the basis of the claims against him . . . as distinguished from collective
allegations”) (citing Twombly, 550 U.S. at 565 n.10,); Tonkovich v. Kan. Bd. of Regents,
159 F.3d 504, 532-533 (10th Cir. 1998) (holding district court’s analysis of plaintiff's §
1983 claims was “infirm” where district court “lump[ed]” together plaintiff's claims against
multiple defendants – “despite the fact that each of the defendants had different powers
and duties and took different actions with respect to [plaintiff]” – and “wholly failed to
identify specific actions taken by particular defendants that could form the basis of [a]
claim”). 	See also Goff v. Hukill, 2010 WL 2595785, at *7 (N.D. Okla. June 24, 2010)
(noting the absence of any allegations regarding each defendants’ conduct).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ 	A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-557, 570 (2007)). 	Detailed factual allegations are
not required, but the statement of the claim under Rule 8(a)(2) must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” 	Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555 (2007)); see generally Fed. R. Civ. P. 8(a)(2) (complaint
must contain “a short and plain statement of the claim showing that the pleader is entitled
to relief[.]”).
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“While the 12(b)(6) standard does not require that Plaintiff establish a prima facie
case in her complaint, the elements of each alleged cause of action help to determine
whether Plaintiff has set forth a plausible claim.” 	Khalik v. United Air Lines, 671 F.3d
1188, 1192 (10th Cir. 2012). 	Thus, the appropriate inquiry is “‘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) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)). “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[.]” Iqbal, 556 U.S. at 678.
II. 	Official Capacity Claims Against Zumwalt
Zumwalt first moves to dismiss the Second Amended Complaint’s claim against her
in her official capacity because she is immune from such suit under the Eleventh
Amendment of the United States Constitution. Zumwalt argues she must be dismissed in
her official capacity because “Eleventh Amendment sovereign immunity bars suits for
money damages against state, state agencies, and state officers in their official capacities.”
Chilcoat v. San Juan County, 41 F.4th 1196, 1213 (10th Cir. 2022). In response, Plaintiff
inexplicably recycles her same arguments previously rejected by the Court regarding
exceptions for injunctive relief, bankruptcy and removal cases, none of which apply here.
See Docket No. 32 & 34. 	Although Plaintiff’s Response states that she also alleges, “in
part, that [Zumwalt] violated her substantive due process rights[,]” see Docket No. 39, p.
4, she offers no authority or explanation how such a claim would overcome Eleventh
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Amendment immunity. 	Thus, for the reasons previously set forth in the July 17, 2025
Report and Recommendation, Zumwalt is immune from suit in her official capacity under
the Eleventh Amendment. See Docket No. 32, pp. 7-8.
Zumwalt also argues Plaintiff identifies her due process claim as a violation of the
Fifth Amendment, which only applies to the Federal government. Zumwalt is correct that
“[t]he Due Process Clause of the Fifth Amendment applies only to action by the federal
government. . . .” Koessel v. Sublette County Sheriff's Dep't, 717 F.3d 736, 748 n. 2 (10th
Cir. 2013). Plaintiff plainly alleges Zumwalt is Executive Director of ODTR, see Docket
No. 36, ¶ 2, which is not a federal agency. Accordingly, Plaintiff's Fifth Amendment claim
against Zumwalt should be dismissed.
Third, Zumwalt argues Plaintiff cannot assert, to the extent it is alleged in the
Second Amended Complaint, an inverse or reverse condemnation claim against Zumwalt
in her official capacity. Plaintiff concedes she did not specifically allege such a claim, but
states it is “alluded to by the Plaintiff as evidence of the wrongdoing by Defendant in
termination 	of 	the 	Lease 	Agreement.” 	See 	Docket 	No. 	39, 	p. 	5. 	Plaintiff 	then
acknowledges, for the first time, that her property was not actually seized or taken by
ODTR or the Corps of Engineers, but that instead she moved her property to another
location. 	Id. 	Thus, whatever allusions Plaintiff is making regarding any condemnation,
she clearly admits she is not asserting any claim for inverse or reverse condemnation in the
Second Amended Complaint. 	Moreover, Plaintiff does not allege facts necessary to
plausibly state such a condemnation claim.
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III. 	Individual Capacity Claims Against Zumwalt
Zumwalt moves to dismiss Plaintiff’s 42 U.S.C. § 1983 due process claim because,
even if Plaintiff is asserting such a claim under the Fourteenth Amendment, she does not
allege any personal involvement of Zumwalt in any constitutional violation. Specifically,
Zumwalt argues Plaintiff fails to specifically allege she took part in any constitutional
violation and whether any of Plaintiff’s property was actually taken. In response, Plaintiff
alleges Zumwalt was the final decision maker in terminating the Lease and the Termination
Letter threatened to take her property if it was not removed.
Although the Second Amended Complaint alleges a claim for a violation of
Plaintiff’s due process rights, it does not specifically identify the type of right she claims
was violated or the specific source of that right. The Due Process Clause of the Fourteenth
Amendment is the source of different types of constitutional protection. First, it provides
for procedural due process, a guarantee of fair procedure in connection with any
deprivation of life, liberty, or property by a state. Daniels v. Williams, 474 U.S. 327, 337
(1986). The Due Process Clause also contains a substantive component that incorporates
the specific protections of most of the Bill of Rights against the states. 	Id. 	The Second
Amended Complaint is silent on the type of due process violation, alleging only that
ODTR’s termination of the Lease effectually took her property, which amounted to a taking
of her property without just compensation and denied her ability to have employment. See
Docket No. 36, ¶¶ 	10-20. 	Plaintiff’s Response does nothing to clarify whether she is
seeking redress for her procedural or substantive due process rights. See Docket No. 39.
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A. 	Procedural Due Process
“Procedural due process imposes constraints on governmental decisions which
deprive individuals of liberty or property interests within the meaning of the Due Process
Clause of the . . . Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976)
(quotations omitted). “The Fourteenth Amendment’s procedural protection of property is
a safeguard of the security of interests that a person has already acquired in specific
benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576 (1972).
A procedural due process property claim involves a two-step assessment: “(1) did
the individual possess a protected interest such that the due process protections were
applicable; and, if so, then (2) was the individual afforded an appropriate level of process.”
Brown v. Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011) (quotations omitted). 	“[I]t is
only after the plaintiff first demonstrates the existence and deprivation of a protected
property interest that the plaintiff is constitutionally entitled to an appropriate level of
process.” Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007).
In the procedural due process context, “[p]roperty interests . . . are not created by
the Constitution [but][r]ather . . . by existing rules or understandings that stem from an
independent source such as state law.” 	Roth, 408 U.S. at 577. 	“Thus, constitutionally
protected property interests are created and defined by statute, ordinance, contract, implied
contract and rules and understandings developed by state officials.” Kirkland v. St. Vrain
Valley Sch. Dist. No. Re–1J, 464 F.3d 1182, 1190 (10th Cir. 2006). “Valid contracts may
constitute a property interest for purposes of due process.” Southern Disposal, Inc. v. Texas
Waste Mgmt., 161 F.3d 1259, 1265 (10th Cir. 1998). A possessory interest in property that
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arises from a contract, such as a lease, has been held “sufficient to invoke the protection of
the Due Process Clause.” Brecheen v. Lofaro, 559 Fed. Appx. 723, 730 (10th Cir. 2014)
(quoting Fuentes v. Shevin, 407 U.S. 67, 87 (1972).
Plaintiff fails to specifically identify what property right she is evoking. 	On one
hand, Plaintiff appears to rely on the Lease, alleging its termination deprived her of
employment. 	See Docket No. 36, ¶ 19. 	Plaintiff fails, however, to allege any fact as to
how the Lease created a right to employment that can be construed as a property right
protected by the Fourteenth Amendment. Alternatively, Plaintiff appears to allege that the
threat to deem her marina property abandoned and seize it is the equivalent to taking her
property. 	Id., ¶ 20. 	Like an incomplete thought, the Second Amended Complaint never
alleges how such a threat alone is a taking protected by the Fourteenth Amendment,
particularly where the property was not actually taken.
While those with whom the government contracts might have some procedural due
process rights, outside the employment context it appears that if such rights exist, they are
generally limited and are usually satisfied by state-law remedies. See Masso-Torrellas v.
Municipality of Toa Alta, 845 F.3d 461, 467 (1st Cir. 2017) (“A simple breach of contract
does not amount to an unconstitutional deprivation of property. To hold otherwise would
run the risk of transmogrifying virtually every dispute involving an alleged breach of
contract by a state or a state agency into a constitutional case.”) (cleaned up); Ramsey v.
Board of Education of Whitley County, Ky., 844 F.2d 1268, 1273 (6th Cir. 1988) (“A state
breach of contract action is most clearly an adequate remedy for a property deprivation
when the only basis for federal jurisdiction is that a state actor is one of the contracting
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parties.”); San Bernardino Physicians’ Services Medical Group, Inc. v. San Bernardino
County, 825 F.2d 1404, 1409–10 (9th Cir. 1987) (“Yet the farther the purely contractual
claim is from an interest as central to the individual as employment, the more difficult it is
to extend it constitutional protection without subsuming the entire state law of public
contracts.”).
Indeed, the Supreme Court held that when “[a] simple breach of contract is . . .
alleged[,] . . . [t]he breach of a contract is neither a confiscation of property nor a taking of
property without due process of law.” Shawnee Sewerage & Drainage Co. v. Stearns, 220
U.S. 462 (1911). 	More recently, in Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189,
197 (2001), the Supreme Court reaffirmed this holding. In Lujan, the State of California
withheld payment from a public works subcontractor, and the subcontractor sued the state
under § 1983. Id. at 196–97. The Supreme Court characterized the subcontractor's interest
as merely a contractual interest—“deprivation of payment that it contends it is owed under
a contract”—and held that this interest did not give rise to a § 1983 claim, as it could be
adequately protected through a breach of contract suit. Id. at 196.
On its face, the Second Amended Complaint at most alleges a disagreement over
whether Plaintiff was in violation of the Lease sufficient to give ODTR grounds to
terminate the Lease. 	The Lease sets out the rights and remedies for each party. 	For
example, the Lease provides that Plaintiff “agrees to maintain and operate such premises .
. . in a clean, safe, wholesome and sanitary condition, free of trash, garbage or other
obstructions, mowed and trimmed and in compliance with any and all state and federal
laws, general rules or regulations of any governmental authority.” See Docket No. 14, Ex.
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1 at ¶ 6.2 The Lease provides the ODTR with the “right to enter upon the premises occupied
by the Lessee, at any reasonable time, to inspect the same.” Id., ¶ 12. “Any violation by
Lessee of the terms of [the Lease] shall be grounds for termination of [the Lease] by State.”
Id., ¶ 9(a). Moreover, “[n]otice of the violation shall be provided to Lessee along with a
time period within which Lessee shall remedy the violation. If the violation is not cured,
the lease may be terminated by the State provided that thirty (30) days written notice of
termination is given to the Lessee.” Id.
The Second Amended Complaint essentially alleges that Plaintiff was afforded all
the rights and process she was due under the Lease. The marina was inspected, deficiencies
were 	noted, 	Plaintiff 	was 	afforded 	30 	days 	to 	correct 	the 	deficiencies, 	additional
inspections were conducted finding additional deficiencies and that prior deficiencies were
not corrected, additional time to cure was afforded, and the Lease was terminated after 30
days’ notice. See Docket No. 36, ¶¶ 12-15. In all, Plaintiff was first notified of deficiencies
on October 19, 2022, with additional notices on December 12, 2022 and March 8, 2023,
but ODTR did not send the Termination Letter until April 11, 2023. 	Thus, Plaintiff was
provided at least 35 days and up to five months to cure the deficiencies before ODTR
notified her it was terminating the Lease.
2 Although the Lease is not attached to the Second Amended Complaint, it is referenced therein
and was attached to Plaintiff’s Amended Complaint. “[T]he district court may consider documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th
Cir. 2002) (emphasis added). 	The Court may take judicial notice of both its own docket sheets
and other state or federal court docket sheets. United States v. Ahidley, 486 F.3d 1184,1192, n. 5
(10th Cir. 2007) (“We may exercise our discretion to take judicial notice of publicly-filed records
in our court and certain other courts concerning matters that bear directly upon the disposition of
the case at hand.”).
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Instead of alleging that the process she was due under the Lease was not followed
or provided, Plaintiff challenges ODTR’s termination decision by alleging she corrected
all the deficiencies from the three inspections. Id., ¶¶ 18 & 21. Apparently to bolster this
argument, Plaintiff attaches to her Response an April 20, 2023 letter from her attorney to
Zumwalt asserting the deficiencies were corrected but such letter is not attached to or even
referenced in the Second Amended Complaint. 	See Docket No. 39, Ex. 2. 	A court
generally may not consider evidence extraneous to the complaint when ruling on a Rule
12(b)(6) motion to dismiss without converting the motion to one for summary judgment.
David v. City & Cty. of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996).3 Notwithstanding
this rule, “the district court may consider documents referred to in the complaint if the
documents are central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (emphasis
added). 	At most, the Second Amended Complaint alleges Plaintiff “asserts she has
corrected deficiencies noted in inspections of the premises” and that Zumwalt gave no
consideration to the “evidence presented by the Plaintiff of said corrections” but does not
state she notified ODTR of such corrections through her attorney or otherwise reference
the April 20, 2023 letter. 	See Docket No. 36, ¶¶ 18 & 26. 	As such, the undersigned
Magistrate Judge declines to convert the motion into a motion for summary judgment and
the April 14, 2023 letter is not considered in deciding Zumwalt’s Motion to Dismiss.
3 This issue was identified in the July 17, 2025 Report and Recommendation, see Docket No. 32,
pp. 9-10, but Plaintiff again does not refer to or attach the April 20, 2023 letter to the Second
Amended Complaint .
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Nonetheless, even if the April 14, 2023 letter were considered, it simply highlights that the
dispute is one of a contractual nature – was the termination proper under the Lease. Thus,
the dispute appears to be in essence a breach of contract claim.4
Moreover, the Second Amended Complaint does not actually allege what specific
actions Zumwalt took that deprived Plaintiff of any due process or what additional process
should have been afforded her. Indeed, despite the issue being raised by Zumwalt in her
motion to dismiss the Amended Complaint and in the July 17, 2025 Report and
Recommendation, see Docket No. 20 & No. 32, the Second Amended Complaint continues
to fail to specifically allege whether any of Plaintiff’s property was actually taken from
her. Plaintiff instead obfuscates the issue by alleging that her property was “effectually”
taken or that she was “denied her ability to have employment” due to termination of the
Lease without any substantive factual allegations on how this is so. See Docket No. 36, ¶¶
19-20. 	Plaintiff finally concedes in her Response that her property was in fact not taken
by ODTR but instead was moved to another location by Plaintiff. See Docket No. 39, p.
5.
The undersigned Magistrate Judge therefore concludes that the Second Amended
Complaint fails to satisfy the first prong of the procedural due process analysis by finding
4 Ramsey acknowledges that a state breach of contract action may not provide an adequate remedy
for a deprivation of some kinds of property. 	844 F.2d at 1273. 	Due process may then require
some kind of a predeprivation procedure. 	Id. 	As a result, “not all parties can be made whole
through a breach of contract action.” Baird v. Bd. of Educ. for Warren Community Unit, 389 F.3d
685, 691 (7th Cir. 2004). 	The issue turns on whether Plaintiff “was denied a right by virtue of
which [s]he was presently entitled either to exercise ownership dominion over real or personal
property, or to pursue a gainful occupation.” Id. (quoting Lujan, 532 U.S. at 196). The Amended
Complaint does not allege facts sufficient to plausibly state such a claim.
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that it does not plausibly allege that Plaintiff possessed a protected interest such that the
due process protections are applicable or that there was a deprivation of such a property
interest. 	As such, the Amended Complaint fails to state a claim for a procedural due
process violation under § 1983.
B. Substantive Due Process
“Substantive due process arises from the Fourteenth Amendment’s protections
against governmental deprivations ‘without due process of law.’” Williams v. Berney, 519
F.3d 1216, 1220 (10th Cir. 2008) (quoting U.S. Const. amend. XIV, § 1). Where executive
action—as opposed to legislative action—is challenged, as it is here, a substantive due
process violation occurs where “government action deprives a person of life, liberty, or
property in a manner so arbitrary it shocks the judicial conscience.” Cnty. of Sacramento
v. Lewis, 523 U.S. 833, 846 (1998); accord Doe v. Woodard, 912 F.3d 1278, 1300 (10th
Cir. 2019); Rollins v. Oklahoma ex rel. Norman Veterans Ctr., 2013 WL 3992393, at *5
(W.D. Okla. Aug. 2, 2013) (“The due process clause of the Fourteenth Amendment
prohibits executive abuse of power which shocks the conscience”). To state a claim for an
executive violation of substantive due process rights, Plaintiff must allege both a (1)
deprivation of property and (2) executive action that shocks the conscience. 	Lindsey v.
Hyler, 918 F.3d 1109, 1115 (10th Cir. 2019); Moore v. Guthrie, 438 F.3d 1036, 1040 (10th
Cir. 2006). Executive action that shocks the conscience requires far more than negligence.
Moore, 438 F.3d at 1040. “Even the actions of a reckless official or one bent on injuring a
person do not necessarily shock the conscience.” Id.
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The undersigned Magistrate Judge concludes that the Second Amended Complaint
does not sufficiently allege a violation of Plaintiff’s substantive due process rights. Again,
the Second Amended Complaint fails to expressly allege that ODTR took Plaintiff’s
property and Plaintiff now concedes that no property was actually taken. Moreover, there
are no allegations of conduct by Zumwalt that shocks the judicial conscience. 	Plaintiff
essentially alleges a disagreement over whether she remedied the identified deficiencies
and ODTR considered her claims that she remedied the deficiencies. As noted above, even
if Zumwalt acted recklessly or bent on injuring Plaintiff, such allegations are insufficient.
Id. Therefore, the Amended Complaint does not plausibly state a substantive due process
claim.
IV. 	Qualified Immunity
In addition to alleging failure to state a claim, Zumwalt contends she is entitled to
qualified immunity. Qualified immunity “protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” 	Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Specifically, it is “an immunity from suit rather than a mere defense to liability.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). 	While Twombly “rejects a heightened
pleading standard[,]” Robbins v. Okla., 519 F.3d 1242, 1249 (10th Cir. 2008), “‘[t]he
Twombly standard may have greater bite in [the context of civil rights cases against a
government official where the defendant generally sought dismissal on qualified immunity
grounds], appropriately reflecting the special interest in resolving the affirmative defense
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of qualified immunity at the earliest possible stage of a litigation.’” Acosta v. Jani-King of
Okla., Inc., 905 F.3d 1156, 1160 (10th Cir. 2018) (quoting Robbins, 519 F.3d at 1249).
“Iqbal reinforced our earlier statement that in a § 1983 action it is particularly important
that the complaint make clear exactly who is alleged to have done what to whom, to provide
each individual with fair notice as to the basis of the claims against him or her, as
distinguished from collective allegations against the state.” Brown v. Montoya, 662 F.3d
1152, 1163 (10th Cir. 2011) (quotations omitted).
Thus, to make out a viable claim and to overcome the assertion of qualified
immunity, Plaintiff must show that “(1) defendant violated [her] constitutional rights; and
(2) the law was clearly established at the time of the alleged violation.” Soza v. Demsich,
62 F4th 1248, 1253 (10th Cir. 2023); see also Hemry v. Ross, 62 F.4th 1248, 1253 (10th
Cir. 2023) (same); Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013) (same). “When
qualified immunity is asserted in the context of a motion to dismiss, the factual allegations
of the complaint are assumed to be true, and the court’s analysis generally aligns with the
analysis applied with determining the sufficiency of a claim.” Harper v. Woodward Cnty.
Bd. Of Cnty. Commrs, 2014 WL 7399367, *8 (W.D. Okla. Dec. 29, 2014) (citing Brown,
662 F.3d at 1162-1164 and Iqbal, 556 U.S. at 666, 673-675, 677-684). 	This means that,
even at the dismissal stage, Plaintiff bears the burden of showing she has alleged a
constitutional violation that was clearly established. 	See Bledsoe, 53 F.4th at 617 n.25
(“Appellants are correct that once they asserted qualified immunity in the district court,
which they did here, it was Bledsoe’s burden to show both that he had alleged a
constitutional violation and that that violation was clearly established.”) (citing Cox v.
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Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015)). When conducting its analysis, the court has
discretion in deciding which component to address first. Pearson, 555 U.S. at 236. “If the
plaintiff fails to satisfy either part of this two-part inquiry, the court must grant the
defendant qualified immunity.” 	Hesse v. Town of Jackson, Wyo., 541 F.3d 1240, 1244
(10th Cir.2008) (quotations omitted).
The undersigned Magistrate Judge concludes that Zumwalt is entitled to qualified
immunity in her individual capacity. 	As noted above, the Second Amended Complaint
fails to state a claim for a violation of either Plaintiff’s procedural or substantive due
process rights pursuant to 42 U.S.C. § 1983. 	Therefore, Plaintiff has not met her burden
of showing that Zumwalt violated her constitutional rights and it is not necessary to address
the clearly established prong. 	See Hesse, 541 F.3d at 1244 (“[i]f the court concludes no
constitutional right has been violated, no further inquiry is necessary and the defendant is
entitled to qualified immunity.” (quotations omitted)).
V. 	Leave to Amend
Finally, Zumwalt argues that pursuant to LCvR 7.1(o), Plaintiff should not be given
leave to further amend her Second Amended Complaint. Plaintiff does not seek leave to
amend or address the issue in her Response. 	Federal Rule of Civil Procedure 15(a)(2)
provides, in pertinent part, that “a party may amend its pleading only with the opposing
party's written consent or the court's leave. The court should freely give leave when justice
so requires.” Fed. R. Civ. P. 15(a)(2). Whether to grant leave to amend is within the trial
court's discretion. 	Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991).
“Refusing leave to amend is generally only justified upon a showing of undue delay, undue
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prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment.” 	Frank v. U.S. West, Inc., 3
F.3d 1357, 1365 (10th Cir. 1993). 	“A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.” 	Anderson v. Merrill Lynch Pierce Fenner &
Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008) (internal quotations omitted).
Despite previously granting leave to amend on two occasions and being informed
of the infirmities in her Amended Complaint, Plaintiff fails to plead additional facts to
address those issues. 	Indeed, although not in her Second Amended Complaint, Plaintiff
finally concedes in her Response that her property was not actually taken by ODTR after
the Lease was terminated. Therefore, the undersigned Magistrate Judge finds that further
amendment would be futile and recommends that Plaintiff’s Second Amended Complaint
be dismissed with prejudice.
CONCLUSION
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Defendant Shelley Zumwalt’s Motion to Dismiss Plaintiff’s Second Amended Complaint
and Brief in Support [Docket No. 38] be GRANTED WITH PREJUDICE. Any objection
to this Report and Recommendation must be filed within 14 days. See 18 U.S.C.
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§ 636(b)(1); Fed. R. Civ. P. 72(b). Any objection and response shall each be limited to 10
pages and a reply is permitted only with leave of Court upon a showing of good cause.
DATED this 11th day of December, 2025.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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