United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne, United States District Judge
before the Court is the Motion for Summary Judgment of the
Defendant Robert Colbert [Dkt. # 104]. Plaintiff Gary Clark
brought this action pursuant to 42 U.S.C. § 1983
alleging violations of his constitutional rights. Plaintiff
has also asserted a state law negligence claim against
Colbert. Defendant Colbert contends that he is entitled to
summary judgment on all claims asserted by the Plaintiff.
After consideration of the pleadings, affidavits, and briefs,
the Court grants Defendant Colberts Motion for Summary
Judgment on all claims asserted by the Plaintiff.
commenced this action on April 4, 2016, by filing his
Complaint. [Dkt. # 3] On that same day, Plaintiff filed his
Amended Complaint. [Dkt. # 4] On January 5, 2017, Defendant
Robert Colbert filed his Motion for Summary Judgment on all
claims asserted by Plaintiff. [Dkt. # 104]
Court determines that the following facts are either not
specifically most favorable to the Plaintiff.
Gary Clark ("Clark") was diagnosed with
schizophrenia approximately 20- 30 years ago. Over the years,
Clarks brother, Larry Clark, participated in caring for
Clark. By the summer of 2014, Larry had built a small shed
behind Larrys residence, and allowed Clark to live in the
shed. As shown by the record, the shed is located in a large
backyard area with no fencing between Larrys property and
adjoining residential areas.
days leading up to August 18, 2014, Larry observed that Clark
was behaving erratically. Larry was concerned and suspected
that Clark had not taken his psychotropic medications. On
August 18, 2014, Larry Clark went out to the shed and knocked
on the door. When the door opened, Larry Clark saw that Clark
was in the doorway of the shed and had a large knife in his
hand. Clark used the knife to make contact with Larry Clarks
abdomen, causing a small cut.
Clark retreated from the shed, returned to his home, and
called 911. Larry reported that he had been assaulted by his
brother, and that Gary had charged and lunged at Larry with a
knife. The dispatcher logged the call as “domestic
violence” and noted that “Gary Clark had
assaulted [Larry Clark]” and “tried to stab him
with a knife.” Deputies Robbie Lively and Jason
Hathcoat of the Wagoner County Sheriffs Office
("WCSO") were the first to arrive on scene. When
they arrived, they spoke with Larry and looked at his cut.
Larry told them that Clark was upset and had cut Larry with a
knife. Deputies Lively and Hathcoat went around the house
toward the backyard shed. By this time, Clark was standing on
the small porch immediately in front of the shed, holding a
knife and looking mad. The officers observed that the knife
was a large, butcher-like knife, approximately 10-14 inches
Deputies Lively and Hathcoat stood at a distance from Clark
and identified themselves as law enforcement. Clark made no
verbal response, but made gestures at the officers with his
hand shaped like a gun, flipped them off with his middle
finger, and used his hand to motion them to come closer.
Lively and Hathcoat asked Clark to put the knife down and
talk with the officers, with no success. Clarks hand
gestures, including extending a finger in an obscene gesture
towards the officers, continued. Hathcoat and Lively radioed
for supervisors to come to the scene. While the officers
waited for supervisors to respond, Clark continued making
hand gestures, which the officers interpreted as threatening.
six minutes after WCSO Deputies Hathcoat and Lively arrived
on scene, the WCSO deputies requested the nearby Broken Arrow
Police Department ("BAPD") to also respond to the
scene to provide assistance in dealing with Clark. The
Deputies understood that the Broken Arrow Police Department
had access to "less lethal" alternatives, including
tasers, pepper ball launchers, batons, a canine, and a
waiting for the arrival of BAPD officers, the WCSO Deputies
remained about 20-30 feet away from the porch area because
they believed Plaintiff posed a risk of harm to the officers
and could leave the porch at any time armed with the knife.
While waiting for the BAPD, another WCSO deputy, Major Dustin
Dorr, arrived on scene and approached Clark. Major Dorr
approached Clark and told him that he was under arrest and
asked Clark to put the knife down. Clark neither complied,
nor verbally responded to the command.
thirty minutes after WCSO Deputies Hathcoat and Lively
arrived on scene, Captain Patrick Dufriend of the BAPD
arrived on scene, was briefed on the situation and directed
the officers to continue attempting verbal commands to try to
persuade Clark to drop the knife. Captain Dufriend was also
concerned that Clark could leave the porch at any time. Other
officers from the BAP arrived on scene.
Captain DuFried arrived, Wagoner County Sheriff Bob Colbert
arrived. Clark remained on the porch with the knife,
gesturing at the officers with his hands and running his
hands along the knife blade, looking at the officers. Sheriff
Colbert was briefed by officers on the scene, including
Captain DuFriend. At this point, Sheriff Colbert told
Dufriend to “do what you got to do."
DuFriend understood that Sheriff Colbert gave DuFriend the
authority to create a plan to deal with Clark. BAPD Captain
Dufriend then formulated a plan to approach Clark, get the
knife out of his hands, and arrest Clark. Captain DuFriend
directed the BAPD officers to form a line, with Captain
DuFriend in the front with a ballistic shield, followed by
BAPD Sgt. Blevins armed with a pepper ball launcher; and BAPD
Officers Wylie and Gibson armed with tasers. BAPD Officer
Keech was also present with a canine. BAPD Officer Smith was
positioned with an AR-15 rifle on the back porch of the Larry
Clark residence, facing the shed. WCSO deputies Lively and
Hathcoat stood off to the side with side arms to provide
lethal coverage. Captain DuFriends plan was to strike Clark
with pepperballs to cause Clark to drop the knife in order to
secure the scene for the safety of officers and others.
approaching Clark, the officers on the scene had repeatedly
told Clark he was under arrest and to put the knife down.
When Clark still did not drop the knife, Captain DuFriend and
the BAPD officers advanced toward Clark. Captain Dufriend
directed BAPD Officer Blevins to deploy the pepper ball
launcher. The pepper ball launcher, similar to a paint ball
gun, launches pellets filled with pepper powder that burst
upon impact. Sgt. Blevins shot a group of pepper balls at
Clark. Clark was hit with pepperballs with no apparent effect
on Clarks behavior. Clark remained on the porch with the
knife in hand. Captain Dufriend ordered Sgt. Blevins to
deploy another volley of pepper balls at Clark.
delivering two volleys of pepperballs, Captain Dufriend
directed the group of officers to withdraw from the shed so
they could regroup. As the officers backed away, Clark
stepped off the porch and advanced toward the officers, still
with the knife in his hand. In response to Plaintiffs rapid
advance towards the officers, the line of officers began to
fan out away from Clark. BAPD officers Wylie and Gibson
deployed their tasers at Clark. When the tasers had no effect
and Clark continued moving toward the officers with the knife
still in hand, shots were fired, striking Clark. Deputies
Hathcoat and Lively, and Broken Arrow Officer Smith fired
their weapons at Plaintiff. Clark fell to the ground two or
three feet from the officers. Clark dropped the knife, and
was transported to the hospital.
the shooting, Sheriff Colbert spoke with the media about the
situation. He advised the media that the officers had
“tried everything they could do thats less
lethal.” Sheriff Colbert also stated that “two or
three different negotiators [tried] to talk to him, but it
just wasn't happening, ” and that Plaintiff
“broke and charged at the officers.” Sheriff
Colbert advised that the officers deployed non-lethal pepper
balls, tasers, and firearms at Plaintiff when he was within
feet of the officers.
was charged with Assault and Battery with a Dangerous Weapon,
and Assault with a Deadly Weapon. After a preliminary
hearing, the District Court of Wagoner County Ultimately, the
charges against Clark were dismissed because of his
judgment pursuant to Fed.R.Civ.P. 56 is appropriate where
there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-323
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848,
850 (10th Cir. 1993). Fed.R.Civ.P. 56(c) “mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that partys case, and on which that party will bear the
burden of proof at trial.” Celotex Corp, 477
U.S. at 322. A fact is “material” if it pertains
to an element of a claim or defense; a factual dispute is
“genuine” if the evidence is so contradictory
that if the matter went to trial, a reasonable jury could
return a verdict for either party. Anderson, 477
U.S. at 248.
the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the non- moving party, there is no genuine issue for
trial. ” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(citations omitted). “The mere existence of a scintilla
of evidence in support of the plaintiffs position will be
insufficient; there must be evidence on which the [trier of
fact] could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252. In essence, the inquiry
for the Court is “whether the evidence presents a
sufficient disagreement to require submission to a jury, or
whether it is so one-sided that the party must prevail as a
matter of law.” Id. at 251-252. In its review,
the Court construes the record in the light most favorable to
the party opposing summary judgment. Garratt v.
Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
order to survive summary judgment, a plaintiff “must go
beyond the pleadings and designate specific facts so as to
make a showing sufficient to establish the existence of an
element essential to that partys case.” Serna v.
Colorado Dep't of Corr.,455 F.3d 1146, 1151 (10th
Cir. 2006) (internal quotation marks omitted). “Summary
judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the
Federal Rules as a ...