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Allen v. Lang

United States District Court, E.D. Oklahoma

September 19, 2017

1. KAY LANG, in her individual capacity and in her official capacity as Mayor of Boynton, 2. WILLIE G. HOPKINS, in his individual capacity and in his official capacity as an employee of Boynton, 3. CANDACE LANG, in her individual capacity and in her official capacity as an employee of Boynton, and 4. TOWN OF BOYNTON, Defendants.

          ORDER [1]


Before the court are the motions for summary judgment filed by Kay Lang [Docket No. 120], Willie Hopkins [Docket No. 122], [2] 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].[3]


         Summary 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. Id.

         “Conclusory 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).

         “A 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).

         Qualified Immunity

         When a defendant raises a qualified immunity defense in response to a motion to dismiss or a motion for summary judgment, [4] the 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.[5] 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).


         The Parties

         • 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.[7]

         • Kay Lang is Candace Lang's stepmother. Candace Lang and Willie Hopkins have a close relationship, including a child together.

         The 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 ...

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