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Taylor v. City of Bixby

Court of Appeals of Oklahoma, Division II

May 1, 2017

GERON R. TAYLOR, Plaintiff/Appellant,
v.
THE CITY OF BIXBY, OKLAHOMA, a municipal corporation, Defendant/Appellee.

          Mandate Issued: 03/21/2018

          APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DANA L. KUEHN, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS

          Steven R. Hickman, FRASIER, FRASIER & HICKMAN, LLP, Tulsa, Oklahoma, for Plaintiff/Appellant

          Thomas A. LeBlanc, Matthew B. Free, BEST & SHARP, Tulsa, Oklahoma, for Defendant/Appellee

          JOHN F. FISCHER, PRESIDING JUDGE

         ¶1 Geron Taylor appeals the district court's judgment in favor of the City of Bixby in this civil rights action. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S.Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing. The City is entitled to judgment with respect to Taylor's tort claims and his State and federal constitutional claims except in one respect. It cannot be determined from the summary judgment record whether Taylor has a claim based on the ten days he served in the City's jail after his arrest for speeding and driving without a license. In all other respects, the district court's judgment is affirmed. This case is remanded for a determination of whether Taylor has a claim based on his ten-day incarceration.

         BACKGROUND

         ¶2 On September 8, 2011, Taylor was stopped by a Bixby police officer for driving 49 miles per hour in a 40-mile per hour speed zone. During the interrogation that followed, Taylor failed to produce a driver's license, admitted that he did not have a driver's license and admitted that he had never possessed a valid driver's license. Taylor was arrested and charged with speeding and driving without a license. It was subsequently determined that Taylor had been convicted of driving without a valid driver's license on nine previous occasions. On October 4, 2011, Taylor appeared in the Bixby Municipal Court pro se and entered a plea of guilty to both the speeding and driver's license charges. He was fined $703 and sentenced to ten days in the City jail. Taylor served the jail time but did not pay the fine.

         ¶3 Represented by counsel, Taylor filed this case on January 20, 2012, after his release from jail, asserting violations of his Oklahoma and federal constitutional rights as well as Oklahoma tort law claims. In support of these claims, Taylor alleged facts concerning his arrest, conviction and the conditions of his confinement and treatment while incarcerated. The City was named as the only defendant and removed the case to the United States District Court for the Northern District of Oklahoma. The City filed a motion for summary judgment to which Taylor responded. By order dated December 12, 2012, the federal court granted the City's motion, in part, denied it in part, and remanded the case to the state district court for further proceedings. With respect to some of the issues, the federal court determined that Taylor had failed to exhaust available state remedies. The following day, Taylor filed a pro se application for post-conviction relief in Bixby Municipal Court.

         ¶4 In his post-conviction application, Taylor argued that prior to pleading guilty, he was not advised of his right to counsel, right to a jury trial, right to appeal, right to bond pending appeal and that he was fined in excess of the maximum permitted by law. On May 3, 2013, the Bixby Municipal Court allowed Taylor to withdraw his original guilty plea, vacated the October 4, 2011 judgment and granted Taylor a new trial. The court's order states Taylor "was not advised of his right to appeal the decision of the Court or the right to withdraw his plea...." The City appointed counsel to represent Taylor and his case was tried to a jury on August 1, 2013. The jury found Taylor guilty of driving without a valid driver's license. [1] The Judgment and Sentence was entered on February 6, 2014. This time Taylor was fined $300, the maximum fine allowed for driving without a license, and ordered to pay court costs in the amount of $51, both of which he paid. The Judgment and Sentence does not impose or refer to any jail time.

         ¶5 The City then filed a motion for summary judgment in this case and Taylor filed a response. Taylor appeals the district court's January 8, 2016 Final Order and Journal Entry of Judgment granting the City's motion for summary judgment, and finding that Taylor had not and would not be able to state a claim for relief based on the circumstances of his arrest, conviction and incarceration.

         STANDARD OF REVIEW

         ¶6 Title 12 O.S.2011 § 2056 governs the procedure for summary judgment in this case. A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Id. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682 (approved for publication by the Oklahoma Supreme Court). The de novo standard controls an appellate court's review of a district court order granting summary judgment. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051. De novo review involves a plenary, independent, and non-deferential examination of the trial court's rulings of law. In re Estate of Bell-Levine, 2012 OK 112, ¶ 5, 293 P.3d 964.

         ANALYSIS

         ¶7 Taylor's petition, as clarified by his summary judgment submissions, asserts five theories of liability against the City: (1) unreasonable seizure in violation of Article 2 § 30 of the Oklahoma Constitution based on the allegation that he was stopped and arrested because he was black, (2) violation of the Eighth Amendment to the United States Constitution and Article 2 § 9 of the Oklahoma Constitution prohibiting excessive fines and cruel and unusual punishment based on his alleged treatment and the conditions during his ten-day incarceration and the allegation that he was fined in excess of the maximum permitted by City ordinance, (3) violation of Article 2 § 19 of the Oklahoma Constitution guaranteeing a jury trial in criminal proceedings based on the allegation that he was not advised of his constitutional rights before he pled guilty, (4) violation of the Sixth Amendment to the United States Constitution and Article 2 § 20 of the Oklahoma Constitution providing a right to counsel in criminal proceedings based on the same allegation, and (5) violation of Oklahoma tort law -- assault and battery and the tort of outrage -- based on the allegations regarding his treatment while imprisoned, including the allegation that he was assaulted when jailors pointed their weapons at him, denied adequate food and water and subjected to racial slurs. First, we review Taylor's petition and the federal court's judgment to determine what claims survived the federal court proceeding.

         I. Taylor's State Constitutional Claims

         ¶8 In his summary judgment briefing, Taylor cites seven Oklahoma constitutional rights he claims were violated by the City. In addition to the Oklahoma constitutional provisions cited in the previous paragraph, Taylor relies on Article 2 § 2 guaranteeing the right to life, liberty and the pursuit of happiness, and Article 2 § 6 guaranteeing a speedy and certain remedy for every wrong in the courts of this State. Taylor claims he has a private right of action to pursue violations of each of these constitutional rights, citing Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994.

         ¶9 In Bosh, a pretrial detainee alleged that he was subjected to excessive force by law enforcement officials during the booking process at a county detention facility. The Court held that Bosh had a private right of action to enforce a claim of excessive force pursuant to Article 2 § 30 of the Oklahoma Constitution even though the county was exempt from tort liability pursuant to the Governmental Tort Claims Act, 51 O.S.2011 §§ 1 to 172. Id. ¶ 23. Whether the holding in Bosh establishes a private right of action pursuant to other provisions of the Oklahoma Constitution has not been entirely settled. "There has been disagreement among Oklahoma's lower federal and state courts regarding the scope of Bosh 's holding." Daffern v. ...


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