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Clark v. Colbert

United States District Court, E.D. Oklahoma

July 18, 2017

GARY CLARK, Plaintiff,
v.
ROBERT COLBERT, in his official and individual capacities as Sheriff of Wagoner County, Oklahoma; et al., Defendants.

          OPINION AND ORDER

          James H. Payne, United States District Judge

         Now 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.

         BACKGROUND

         A. Procedural History

         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]

         B. Factual Background

         The Court determines that the following facts are either not specifically most favorable to the Plaintiff.

         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.

         In the 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.

         Larry 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 long.

         WCSO 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.

         Approximately 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 ballistic shield.

         While 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.

         Approximately 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.

         After 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."

         Captain 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.

         Before 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.

         After 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.

         After 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.

         Clark 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 schizophrenia.

         DISCUSSION

         Summary 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.

         “When 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).

         In 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). ‚ÄúSummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a ...


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