No. CIV 97-113-B

DOUGLAS G. DRY, JUANITA MCCONNELL,
anti ROSIE BURLISON,

Plaintiffs, vs.

UNITED STATES OF AMERICA et al,

Defendants.

Defendants Kenneth Johnson and Blake Johnico, by and through their attorneys of record, as a reply to Plaintiffs' Response would incorporate all prior briefs filed herein and would show the court as follows:

Plaintiffs in this action are members of the Choctaw Nation of Oklahoma and have filed a civil complaint with this Court against thirty individual defendants along with two Oklahoma cities and (lie United States or America. Plaintiffs assert that these Defendants engaged in numerous delicts and conspiracies which resulted in the allegedly wrongful arrest of the Plaintiffs, alleged physical Injuries incident thereto, their alleged confinement for approximately two hours in the Talihina and Clayton City Jails, and the filing of criminal complaints against (hem intheChoctaw Court of Indian 0ffenses. See Amended Complaint passim.

Defendants Kenneth Johnson and Blake Johnico [hereinafter, when referred to collectively, "the security offlicers"] arc currently security officers of the Choctaw Nation, and were such at all times relevant to Plaintiffs' Complaint. Id. paras. 24-25,

Kenneth Johnson and Blake Johnico are both named Defendants to Counts I, II, and IV of the Complaint, id. paras. 57,64, 75; each of those counts lists Plaintiff Douglas G. Dry as the sole plaintiff therein, id.

Blake Johnico is named Defendant to Counts VII, Vill, and X, id paras 104, 111, 122; each of those counts lists Plaintiff Juanita McConnell as the sole Plaintiff therein, id.

This Court will discover that the counts pled against the Defendant tribal police officers run in parallel sequence. Of the three counts brought by both Plaintiffs Dry and McConnell against these Defendants, the first listed in each of the above three paragraphs (Counts I and VII) alleges that the Plaintiff in question was attending the 1995 Choctaw Labor Day festivities on the Tuskahoma tribal grounds, where they had literature seized from them while being falsely arrested by one or more of the Defendant tribal police officers, and that each was then beaten and removed from the tribal grounds to either the Talihina or Clayton city jails. Compare Complaint paras, 45-54 (Count I: Plaintiff Dry) with id. paras. 93-101 (Count VII: Plaintiff McConnell). Each of those counts further alleges that the criminal charges now pending against them in the tribal court "have yet to be resolved," id paras. 55, 102, and that an "unlawful and malicious arrest" caused them to be deprived of federal constitutional rights, id. paras. 57, 104, under color of federal law, id. paras. 56, 103.

Counts IV and X attempt to state claims based solely on the Federal Tort Claims Act, Complaint paras. 72, 119. Defendants Johnson and Johnico maintain that no federal claim against them is created by that Act.

Plaintiffs' Statement of the Case in their Response brief is wholly new material and does not refer to any allegations in their Complaint upon which this Motion to Dismiss filed by Defendant security officers is based. Plaintiffs Amended Complaint fails to state a federal civil claim upon which relief may be granted and this Motion to Dismiss should be granted.

ARGUMENT AND AUTHORITIES

1. A MOTION TO DISMISS MAY NOT ASSERT FACTS OUTSIDE THE PLAINTIFFS' PLEADING.

Plaintiffs have incorporated all their prior briefs filed in the case herein, including all exhibits attached to those briefs. These briefs include evidentiary exhibits which allegedly support their claims. The attached exhibits only support the new matter asserted by Plaintiffs in each of their briefs. These documents, including a videotape, do not facilitate the disposition of this Motion to Dismiss and should be excluded from consideration pursuant to FED. R. CIV. P. 12 (b)(6). See, Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996). The only exception to the attachments would be if Plaintiffs' are citing to the laws of a foreign jurisdiction (the Choctaw Nation) which Local Rule 7.2 (E and F) requires attachment of foreign jurisdiction's statutes or ordinances.

Defendants Kenneth Johnson and Blake Johnico submit to this Court that Plaintiffs' Amended Complaint states no claim on the basis of which relief may be granted, and that no basis for the exercise of federal jurisdiction over them may be found. Defendants Kenneth Johnson and Blake Johnico request this Court to dismiss with prejudice, all counts against them in the instant litigation.

Respectfully submitted,

STEIDLEY & NEAL
Attorneys for Defendants Kenneth Johnson and Blake Johnico

I hereby certify that on the 4th day of August, 1977 a true and correct copy of the foregoing was via first class U. S. Mail to: Scott Kayla Morrison, P.O. Box 673, Wilburton, Oklahoma 74578, Attorney for Plaintiffs; Peter Bernhardt and Cathryn McClanahan, Special Assistant U.S. Attorneys, 333 West Fourth Street, Suite 3460, Tulsa, OK 74103-3809.