Ferrick v. City of Tulsa

District Court, N.D. Oklahoma·Decided May 28, 2025·No. 4:25-cv-00100·Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARICO FERRICK, ) ) Plaintiff, ) ) vs. ) Case No. 25-CV-100-JFJ ) CITY OF TULSA, ) ) Defendant. )

OPINION AND ORDER

Before the Court are (1) Defendant City of Tulsa’s Motion to Dismiss (ECF No. 9) and (2) Plaintiff Marico Ferrick’s Opposed Motion to Add Party Defendant (ECF No. 17). The parties have consented to a magistrate judge presiding over the case. ECF No. 12. The Court combines decision on both motions in this Opinion and Order. I. Factual Background The following relevant facts are alleged in the Petition (ECF No. 9-1). Plaintiff Marico Ferrick (“Plaintiff”) is an individual residing in Tulsa County, Oklahoma. Pet. ¶ 3. Officer Timothy Lewandowski (“Officer Lewandowski”) was employed by the City of Tulsa (“City”) as a law enforcement officer in 2019. Id. ¶¶ 2, 7. On September 25, 2019, Officer Lewandowski conducted a traffic stop of Plaintiff based on a non-working vehicle taillight. Id. ¶ 10. Plaintiff alleges his taillights were, in fact, properly functioning at the time of the traffic stop. Id. ¶ 11. According to the Petition, City falsely told a news station that Plaintiff’s car was stopped in the middle of the road, when it was actually parked at an apartment complex. Id. ¶¶ 12-13. Plaintiff alleges Officer Lewandowski approached Plaintiff’s vehicle aggressively with his gun drawn, pointing it at Plaintiff while yelling commands. Id. ¶ 14. Plaintiff alleges City falsely told a news station that Plaintiff failed to obey Officer Lewandowski’s commands, and that footage from a body camera worn by Officer Lewandowski (“body cam”) shows that Plaintiff actually obeyed all commands. Id. ¶¶ 15-16. Specifically, Plaintiff alleges that City falsely told the news station that Officer Lewandowski saw a driver’s license belonging to a retired Tulsa Police Department officer; that Plaintiff acted aggressively, resisted the officer, head-butted, and spat on him; and that Officer Lewandowski had to deploy pepper spray in Plaintiff’s face to get him handcuffed. Id. ¶¶

17, 19-20. Plaintiff alleges that, in fact, body cam footage shows Officer Lewandowski not spotting a TPD officer’s driver’s license; Plaintiff not resisting or head-butting Officer Lewandowski; Plaintiff allowing Officer Lewandowski to cuff him; Officer Lewandowski choking Plaintiff while cuffed; and Officer Lewandowski spraying pepper spray in Plaintiff’s face while handcuffed, causing Plaintiff to spit the pepper spray out of his mouth. Id. ¶¶ 22-25. Plaintiff was charged in Tulsa County District Court with the crimes of (1) assault and battery upon a police officer, in violation of Okla. Stat. tit. 21, § 649B; (2) resisting an officer, in violation of Okla. Stat. tit. 21, § 268; (3) possession of controlled drug without a prescription, in violation of Okla. Stat. tit. 63, § 2-402 A1; (4) driving without a driver’s license, in violation of

Okla. Stat. tit. 47, § 6-303(A); (5) failure to carry insurance/security verification form, in violation of Okla. Stat. tit. 47, §§ 7-602.1, 7-606(A)1; and (6) improper tail lamps, in violation of Okla. Stat. tit. 47, § 12-204. ECF No. 9-2 (docket sheet in State of Oklahoma v. Ferrick, No. CF-2019-4664 (Tulsa County).1 All counts were dismissed on December 11, 2019, due to the prosecution witness’ failure to appear. Id. On May 21, 2021, Plaintiff filed a civil petition against City in Tulsa County District Court, based on the above-described events (“Dismissed Petition”). ECF No. 9-3 (Petition in Tulsa County Case No. CJ-2021-01494). In the Dismissed Petition, Plaintiff asserted state-law claims

1 The Court may take judicial notice of Plaintiff’s criminal docket sheet and other public records. See State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1226 n.7 (10th Cir. 2008). for (1) negligent performance of a law enforcement function under the Oklahoma Governmental Tort Claims Act (“OGTCA”) and (2) statutory excessive force, under Okla Stat. tit. 22, § 34.1(b) and the OGTCA. Id. ¶¶ 30-34. This lawsuit was dismissed without prejudice for failure to prosecute on July 2, 2024. ECF No. 9-4 (docket sheet in Tulsa County Case No. CJ-2021-01494). Plaintiff then filed this pending case against City in Tulsa County District Court on

February 10, 2025, asserting seven causes of action, based on the same operative facts as in the Dismissed Petition: (1) False Arrest under 42 U.S.C. § 1983; (2) Excessive Force (Municipal Custom and Policy) under 42 U.S.C. § 1983; (3) Negligent Training and Supervision under 42 U.S.C. § 1983; (4) Negligence; (5) False Arrest under common law; (6) Malicious Prosecution under common law; and (7) Malicious Prosecution under 42 U.S.C. § 1983. ECF No. 9-1 (Petition) at ¶¶ 27-64. Plaintiff relies on the Oklahoma Savings Statute, Okla. Stat. tit. 12, § 100, for the timeliness of his claims. City removed the case to this Court on March 3, 2025. ECF Nos. 2, 8. II. Motion to Dismiss (ECF No. 9) City seeks dismissal of five claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6).2 City contends that four of Plaintiff’s seven claims are barred by the relevant statutes of

limitations, and the Oklahoma Savings Statute does not preserve them. City further argues that Plaintiff’s negligence claim, while timely, should be dismissed for failure to allege sufficient facts. A. General Legal Standards – Rule 12(b)(6) In considering a Rule 12(b)(6) motion, the court must accept all well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the nonmoving party. See Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).

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Ferrick v. City of Tulsa, (N.D. Okla. 2025).

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