United States District Court, E.D. Oklahoma
HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE.
Before the court are the motions for summary judgment filed
by Kay Lang [Docket No. 120], Willie Hopkins [Docket No.
122],  and the Town of Boynton [Docket No. 123].
Willie Hopkins and the Town of Boynton joined Kay Lang's
motion. Also before the court is Candace Lang's pro
se motion, which the court construes as a motion for
summary judgment [Docket No. 110].
STANDARD OF REVIEW
judgment will be granted if there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). The court's function
is not “to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine
issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). In applying the summary
judgment standard, the court views the evidence and draws
reasonable inferences therefrom in the light most favorable
to the nonmoving party. Burke v. Utah Transit Auth. &
Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). At this
stage, however, Plaintiff may not rely on mere allegations,
but must have set forth, by affidavit or other evidence,
specific facts in support of his Second Amended Complaint.
allegations that are unsubstantiated do not create an issue
of fact and are insufficient to oppose summary
judgment.” Harvey Barnett, Inc. v. Shidler,
338 F.3d 1125, 1136 (10th Cir. 2003) (citation omitted).
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing
that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). While the court may consider
affidavits at the summary judgment stage, “the
nonmovant's affidavits must be based upon personal
knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not
sufficient.” Hall, 935 F.2d at 1111
(emphasis added). The court disregards “inadmissible
hearsay statements contained in affidavits, as those
statements could not be presented at trial in any
form.” Argo v. Blue Cross and Blue Shield of
Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)
(emphasis in original).
movant is not always required to come forward with affidavits
or other evidence to obtain summary judgment; once the movant
points out an absence of proof on an essential element of the
nonmovant's case, the burden shifts to the nonmovant to
provide evidence to the contrary.” Hall, 935
F.2d at 1111, n. 5. Additionally, “the court need
consider only the cited materials, but it may consider other
materials in the record.” Fed.R.Civ.P. 56(c)(3).
defendant raises a qualified immunity defense in response to
a motion to dismiss or a motion for summary judgment,
burden shifts to the plaintiff and the court employs a
two-part test. Morris v. Noe, 672 F.3d 1185, 1191
(10th Cir. 2012); Brown v. Montoya, 662 F.3d 1152,
1164 (10th Cir. 2011). A plaintiff must show that: (1) the
defendant violated a constitutional right, and (2) the
constitutional right was clearly established at the time of
the defendant's alleged misconduct. Id. A
plaintiff must establish both prongs to defeat a qualified
immunity defense. Id. The court has discretion to
decide which of the two prongs to address first in light of
the circumstances of the case. Brown, 662 F.3d at
1164. Only if a plaintiff first meets this two-part test does
the defendant bear the traditional summary judgment burden to
show that there are no genuine disputes of material fact and
that he or she is entitled to summary judgment as a matter of
law. Kock v. City of Del City, 660 F.3d 1228, 1238
(10th Cir. 2011).
UNDISPUTED MATERIAL FACTS
Plaintiff is an elderly man of slight build.
At the time of the incident giving rise to this litigation,
Kay Lang was the mayor of the Town of Boynton.
Both Candace Lang and Willie Hopkins were hired by previous
mayors, not by Kay Lang.
Candace Lang was hired as a volunteer assistant city clerk in
April of 2014 and approved by the city council in July of
2014. She was terminated from her position as clerk in July
of 2016 following a finding of “financial
discrepancies.” • Willie Hopkins was hired as the
Town's water maintenance person in 2014. Kay Lang was a
board member when Willie Hopkins was hired and recalls that
his hiring was approved unanimously. Kay Lang was not aware
of any disciplinary action taken against Willie Hopkins for
any misbehavior as the Town's water maintenance person
while she was mayor. After the March 14, 2016 incident with
Plaintiff, Willie Hopkins either resigned or was terminated
from his position.
Kay Lang is Candace Lang's stepmother. Candace Lang and
Willie Hopkins have a close relationship, including a child
March 14, 2016 Incident
On March 9, 2016, Plaintiff requested records from the Town
of Boynton. Plaintiff spoke with Candace Lang about his
request that day. Plaintiff avers that she was hostile
towards his request.
On March 14, 2016, at about 3:00 p.m., Kay Lang called
Plaintiff to let him know the records were available and that
he could pick them up from her house. He declined because he
was not feeling well.
Later in the afternoon on March 14, 2016, Kay Lang called
Plaintiff and told him she would be at City Hall around 6:00
p.m. if he wanted to pick up the records at that time.
Plaintiff declined because he still was not feeling well.
Plaintiff called Kay Lang later that day and agreed to meet
her at City Hall at 6:00 p.m.
Candace Lang testified that on the afternoon of March 14,
2016, after returning from errands in Tulsa, she and Willie
Hopkins stopped by Kay Lang's home. Additionally, a text
message shows ...