Phillips v. Officer Tharp et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF OKLAHOMA
LADELL PHILLIPS, as Executor of the
Estate of DAMON HENDERSON,
Plaintiff,
v.
(1) OFFICER ROBERT THARP, in his
individual capacity;
(2) CHIEF LARRY CROSSLAND, in his
individual and official capacity; and
(3) TOWN OF SPIRO, a political
subdivision,
Defendants.
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Case No. 6:24-CV-53-RAW-JAR
FINDINGS AND RECOMMENDATION
This matter comes before the Court on the motion to dismiss [Dkt. 46]1 filed on
behalf 	of 	defendant 	Larry 	Crossland 	("Crossland"), 	in 	his 	individual 	capacity,
pursuant to Fed. R. Civ. P. 12(b)(6). United States District Judge Ronald A. White,
who presides over this action, referred the case to the undersigned United States
Magistrate Judge "for all pretrial and discovery matters, including dispositive
motions, in accordance with 28 U.S.C. [§] 646(b) and Fed. R. Civ. P. 72." [Dkt. 24].
I. 	BACKGROUND
This civil rights action arises from an officer-involved shooting that occurred
in Spiro, Oklahoma on February 9, 2023, resulting in the death of Damon Henderson
("Damon"). On November 21, 2023, the Estate of Damon Henderson initiated this
1 For clarity and consistency herein, when the Court cites to the record, it uses the pagination
and document numbers provided by CM/ECF.
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action in the District Court of LeFlore County, Oklahoma. [Dkt. 2-2]. The case was
removed to this Court on February 12, 2024 pursuant to 28 U.S.C. § 1441. [Dkt. 2].
The Estate filed an amended complaint on March 21, 2024, asserting four claims
under 42 U.S.C. § 1983: (1) arrest without probable cause in violation of the Fourth
Amendment 	against 	defendant 	Robert 	Tharp 	("Tharp"); 	(2) 	excessive 	force 	in
violation of the Fourth Amendment against Tharp; (3) conspiracy to violate Damon's
rights under the Fourteenth Amendment against Tharp and Crossland; and (4)
municipal liability against defendant Town of Spiro ("Spiro"). [Dkt. 20].
Spiro filed a motion to dismiss on April 14, 2024. [Dkt. 33]. Because the Estate
failed to respond within the time permitted by EDOK LCvR 7.1(d), this Court entered
a Show Cause Order directing the Estate to respond by May 21, 2024 and show cause
as to why Spiro's motion should not be granted. [Dkt. 38]. No response was submitted,
resulting in this Court's entry of Findings and a Recommendation that the motion be
granted and that Spiro be dismissed from this action without prejudice. [Dkt. 40]. In
addition, all defendants jointly filed a second motion to dismiss on May 3, 2024,
contending that the Estate was not the proper party plaintiff. [Dkt. 36]. The Estate
responsively advised that Damon's grandmother, LaDell Phillips, had been appointed
as personal representative on May 16, 2024. [Dkt. 39]. This Court accordingly
recommended the filing of a second amended complaint naming said personal
representative as plaintiff. [Dkt. 40].
Plaintiff LaDell Phillips, as Executor of the Estate of Damon Henderson, filed
a second amended complaint ("SAC") on March 13, 2025. [Dkt. 41]. On March 27,
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2025, Spiro and Crossland separately moved to dismiss the SAC. [Dkt. 45; Dkt. 46].
Plaintiff failed to respond to Spiro's motion,2 but timely responded in opposition to
Crossland's motion. [Dkt. 47]. Following submission of Crossland's reply brief [Dkt.
48], this Court conducted an in-person motion hearing on May 7, 2025 [Dkt. 51].
II. 	DISMISSAL STANDARD
To survive a motion to dismiss under Rule 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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 570 (2007)). "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." Id. The question to be decided 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) (internal quotations omitted). In
making this assessment, the Court "must accept all the well-pleaded allegations of
the complaint as true and must construe them in the light most favorable to the
plaintiff." Waller v. City & Cty. of Denver, 932 F.3d 1227, 1282 (10th Cir. 2019).
III. 	ANALYSIS
Crossland seeks Rule 12(b)(6) dismissal of plaintiff's § 1983 conspiracy claim
(Count III). The Court first explains the governing law on § 1983 conspiracies and
2 As a result of this second failure to respond to Spiro's dismissal motion within the time
permitted by EDOK LCvR 7.1(d), this Court, on April 28, 2025, entered a second Findings and a
Recommendation that Spiro be dismissed from this case without prejudice. [Dkt. 50].
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then applies that law to the facts alleged in the operative complaint.
A. 	LAW ON § 1983 C ONSPIRACIES
To plead a § 1983 conspiracy, a plaintiff must allege facts showing both (1) the
existence of a conspiracy and (2) the actual deprivation of a constitutional right. Dixon
v. City of Lawton, Okl., 898 F.2d 1443, 1449 n.6 (10th Cir. 1990); see also Thompson
v. City of Lawrence, Kan., 58 F.3d 1511, 1517 (10th Cir. 1995); Bledsoe v. Carreno, 53
F.4th 589, 609 (10th Cir. 2022). Both elements are required, as "pleading and proof
of one without the other will be insufficient." Dixon, supra; see also id. ("Provided that
there is an underlying constitutional deprivation, the conspiracy claim allows for
imputed liability; a plaintiff may be able to impose liability on one defendant for the
actions of another performed in the course of the conspiracy.").
To satisfy the conspiracy element, "a plaintiff must allege specific facts
showing an agreement and concerted action among the defendants." Tonkovich v.
Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). This requires a "a meeting of
the 	minds, 	an 	agreement 	among 	the 	defendants, 	or 	a 	general 	conspiratorial
objective." Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010) abrogated on
other grounds by Torres v. Madrid, 592 U.S. 306 (2021). "Conclusory allegations of
conspiracy are insufficient to state a valid § 1983 claim." Tonkovich, supra. The
plaintiff must "'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[.]'" Bledsoe, 53 F.4th at 609 (emphasis in original) (quoting Robbins v. Oklahoma,
519 F.3d 1242, 1250 (10th Cir. 2008)).
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B. 	C ONSPIRACY A NALYSIS
1. 	Plaintiff's Allegations
Plaintiff alleges that, throughout 2022 and early 2023, Crossland and Tharp
engaged in a course of conduct directed at her grandson, including threats that
Damon was a "menace" who would be shot, seizure of his firearm and dogs without
contemporaneous charges, and efforts to build a case against him using older
incidents. [Dkt. 41 at 2-4, ¶¶ 8-15]. After Damon escaped officers on February 8, 2023,
Crossland allegedly fabricated a claim that Damon shot Crossland’s police truck and,
together with Tharp, agreed to have Damon arrested without probable cause by
seeking a warrant based on prior events. [Id. at 4, ¶ 15-16]. The next day, after
submitting an affidavit to the district attorney and patrolling the town of Spiro to
find Damon, Tharp encountered Damon, who allegedly did not raise or point a gun,
yet Tharp shot and killed him and then fired into his own vehicle to make it appear
Damon had shot at him. [Id. at 4-5, ¶ 17-19]. Under Count III, plaintiff asserts that
Crossland and Tharp’s agreement to arrest Damon without probable cause, combined
with Tharp’s allegedly unreasonable and excessive use of force and fabrication or
mishandling of evidence, constitutes a § 1983 conspiracy to violate Damon’s Fourth
Amendment 	right 	to 	be 	free 	from 	unreasonable 	seizure 	and 	his 	Fourteenth
Amendment due process rights. [Id. at 6, ¶¶ 1-2].
2. 	Chief Crossland's Motion and Plaintiff's Response
Crossland argues that Count III is conclusory under Twombly and Iqbal
because, apart from the allegation that he and Tharp "agreed to arrest Damon
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without probable cause," the SAC does not plead concrete facts showing a "single
plan" or " agreement and concerted action" to bring about an unlawful seizure or use
of force. [Dkt. 46 at 5]. He contends that plaintiff identifies no specific unlawful act
in obtaining the warrant (such as particular false statements or omissions) and does
not allege that Damon was arrested or otherwise seized pursuant to that warrant.
Crossland further maintains that plaintiff has not adequately alleged a constitutional
violation attributable to the purported conspiracy. [Dkt. 48 at 2-3]. The conspiracy
claim is tied to Counts I and II, which allege that Tharp lacked probable cause to
arrest Damon and used objectively unreasonable, deadly force in doing so. Plaintiff's
theory therefore makes Tharp's use of deadly force the operative Fourth Amendment
seizure and the asserted constitutional deprivation for Count III.
Plaintiff responds that a conspiratorial agreement may be inferred from
conduct and need not be expressly pleaded. She points to the July 2022 dog seizure
and delayed charging decision, the February 8, 2023 alleged fabrication that Damon
shot at Crossland, and Crossland and Tharp's alleged decision on February 9, 2023
to seek an arrest warrant without probable cause as circumstantial evidence of an
agreement to deprive Damon of his constitutional rights. [Dkt. 47 at 2-3 (citing Dkt.
41 at 3-4, ¶¶ 9, 14-15)]. Plaintiff characterizes Crossland's purported fabrication as
nullifying probable cause and as an act taken to further the conspiratorial objective.
3. 	Application
While plaintiff need not allege direct evidence of an express agreement, she
must plead specific facts from which a plausible inference may be drawn that
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Crossland 	and 	Tharp 	reached 	a 	"meeting 	of 	the 	minds" 	on 	a 	"common
unconstitutional goal" and took concerted steps to accomplish it. Bledsoe, 53 F.4th at
609. The operative complaint does not do so. The only explicit reference to an
agreement is the assertion that "Tharp and Crossland agreed to seize [Damon]
without probable cause," [Dkt. 41 at 4, ¶ 15], which is a legal conclusion rather than
a factual description of who said or did what, when, or how. Id. (citing Robbins, 519
F.3d 	at 	1250); 	Twombly, 	550 	U.S. 	at 	551, 	556-57. 	The 	surrounding 	factual
allegations—threats, prior encounters, delayed charging decisions, and Crossland's
alleged fabrication of the February 8 shooting—may suggest hostility but do not,
without 	more, 	plausibly 	establish 	a 	shared 	plan 	to 	violate 	Damon's 	Fourth
Amendment rights.3
Moreover, the SAC does not allege that Damon was actually arrested or
otherwise seized pursuant to the allegedly defective warrant,4 nor does it allege facts
showing that Crossland and Tharp agreed that Tharp would use deadly force on
February 9. On plaintiff's own framing, the relevant constitutional deprivation is
Tharp's use of deadly force. Absent nonconclusory allegations that Crossland and
3 See Shimomura v. Carlson, 811 F.3d 349, 360 (10th Cir. 2015) (affirming dismissal of § 1983
conspiracy claim where plaintiff failed to allege any facts plausibly explaining how officers reached a
meeting of the minds to unlawfully arrest plaintiff before his arrest); Durre v. Dempsey, 869 F.2d 543,
545 (10th Cir. 1989) (affirming dismissal of § 1983 conspiracy claim where "plaintiff failed to allege
specific facts showing agreement and concerted action among defendants").
4 Even if plaintiff had alleged Damon was seized pursuant to the challenged arrest warrant,
the issuance of a warrant by a neutral judge generally supports the conclusion that defendants acted
with objective reasonableness or in “good faith” under the Fourth Amendment. United States v. Leon,
468 U.S. 897, 922-23 (1984). That presumption is overcome only where the issuing judge was misled
by affidavit information defendants knew was false, or would have known was false but for reckless
disregard of the truth. Id. at 922. Here, the SAC does not allege specific facts showing a lack of probable
cause. And plaintiff's response points only to "delay" and a failure "to pursue the matter diligently"
[Dkt. 47 at 2, 3], neither of which renders the challenged warrant invalid or constitutionally defective.
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Tharp agreed to that use of force, or that Crossland's alleged actions in securing a
warrant caused a separate unconstitutional seizure, plaintiff has not plausibly
alleged the required combination of (1) an agreement and concerted action and (2) an
actual deprivation of rights resulting from that agreement. Consequently, this Court
concludes that Count III of the SAC does not state a plausible § 1983 conspiracy claim
against Crossland in his individual capacity.
IV. 	CONCLUSION
IT IS THEREFORE THE RECOMMENDATION OF THIS COURT that the
motion to dismiss [Dkt. 46] filed on behalf of defendant Larry Crossland, in his
individual capacity, be GRANTED. The parties are given 14 days from the date of
the service of these Findings and Recommendation to file any objections. Any
objection filed shall be limited to 10 pages in length. The failure to object to these
Findings and Recommendation within 14 days will preclude review of the judgment
by the District Court based on such findings. See 18 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b).
DATED this 2nd day of December, 2025.
____________________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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