United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court is the Motion to Dismiss (Doc. No. 6) filed by
Defendant, the City of Oklahoma City. Plaintiff responded in
opposition to the motion and Defendant filed a reply in
support of its request that the Court dismiss Plaintiff's
claim under the Oklahoma Constitution. Having considered the
parties' filings, the Court finds as
filed this action alleging he was subjected to excessive
force by Officer Colton Ellis on December 11, 2016, when
Officer Ellis shot Plaintiff in the abdomen. His claims arise
under federal and state law, and Defendant City of Oklahoma
City challenges Count III of the Complaint, which cites the
Oklahoma Constitution, Art. 2, § 30 and Bosh v.
Cherokee Building Auth., 305 P.3d 994 (Okla. 2013).
Defendant contends Plaintiff cannot pursue a Bosh
claim, because a remedy exists under the Oklahoma
Governmental Tort Claims Act. See Perry v. City of
Norman, 341 P.3d 689 (Okla. 2014). Plaintiff asserts the
City's position is improper unless Defendant concedes
Officer Ellis was acting within the scope of his employment
when he shot Dorles Ellis and that it is inconsistent with
the position taken in the City's Answer, wherein it
asserted that Plaintiff's OGTCA claim is barred by
exemption or limitations contained therein.
Perry, the court noted “governmental employees
such as police officers, whether on duty or off duty, have
been held to the possibility their conduct and use of
excessive force may have occurred within the scope of
employment subjecting their employers to liability.”
Id. at 692. The court further noted that Bosh was
barred from seeking relief under the Act, because specific
provisions exempt the state and political subdivisions from
tort liability arising out of the operation of prison
facilities, which was not the case in Perry nor is
it the situation in the instant case. As noted by the court
in Tracewell v. Silver, 2017 WL 58841 (N.D.Okla.
Jan. 5, 2017), the Oklahoma Supreme Court decision in
Perry was that an arrestee has no claim against a
City for the alleged excessive force of its police officers
under Bosh, because there is an available remedy
under the Act.
While Mr. Tracewell presents several arguments in an attempt
to avoid the application of the Perry decision, the
Perry case is largely indistinguishable as it
applies to the state law excessive force claim presented by
Tracewell in this case. Tracewell cannot avoid dismissal of
his state claim against the City by merely alleging that
Silver and McClintock were acting outside the scope of their
employment, because the City may not be held liable under
respondeat superior doctrine-under either the OGTCA or
Bosh-unless the officers were acting within the
scope of their employment. See Okla. Stat. tit. 51,
§ 153(A) (a governmental entity “shall not be
liable under the [OGTCA] for any act or omission of an
employee acting outside the scope of the employee's
employment”); Bosh, 305 P.3d at 1004
(“The common law theory of respondeat superior applies
to municipal liability under [a Bosh claim for violation of
article 2, § 30 of the Oklahoma Constitution] to
determine when an employee of a municipality uses excessive
force within the scope of employment”). On the other
hand, if the officers were acting within the scope of their
employment, then Tracewell's exclusive state remedy
against the City of Bartlesville was under the OGTCA. . . .
Id. at *4. As stated in Bosh,
Under the OGTCA, the question for governmental employer
liability continued to hinge on whether one acted within the
scope of employment by engaging in work assigned, or if doing
what was proper necessary and usual to accomplish the work
assigned, or doing that which was customary within the
particular trade or business. Consequently, governmental
employees such as police officers, whether on duty or off
duty, have been held to the possibility that conduct such as
striking arrestees, physically and verbally attacking
customers of a private business, causing a car accident, or
injuring detainees/arrestees, may have occurred within the
scope of employment subjecting their employers to liability.
Bosh v. Cherokee Cty. Bldg. Auth., 2013 OK 9, ¶
16, 305 P.3d 994, 1000, as corrected (Okla. June 28, 2013).
Because the question of the City's liability is the same
regardless of whether the Court applies Bosh or the
OGTCA, that is whether Officer Ellis was acting within the
scope of his employment at the time he shot Dorles Ellis,
Defendant City is entitled to dismissal of Plaintiff s
Bosh claim, because to prevail on Bosh
would require the same proof in this regard as a OGTCA claim.
It is apparent that a Bosh claim exists only where
there is no OGTCA claim upon which to recover, at this
juncture, Defendant's motion is well taken.
Motion to Dismiss is GRANTED.
IS SO ORDERED.
 Defendant City filed both an Answer
and a Motion to Dismiss. (Doc. No. 5 and 6). Because the City
filed an Answer, the instant motion is more appropriately
construed as a motion for judgment on the pleadings, which
ultimately does not impact the Court's analysis. See