United States District Court, E.D. Oklahoma
OPINION & ORDER
H. Payne, Judge
the Court is a Motion for Summary Judgment filed by
Defendants Misty Johnson and the Board of County
Commissioners of Latimer County (Dkt. 66). After
consideration of the briefs, and for the reasons stated
below, the Motion is GRANTED.
29, 2016, officials with the Latimer County Sheriff's
Office (“LCSO”), along with other state and local
law enforcement officials, conducted a raid on the shop and
residence at the ranch property of the brother of Gary Lyons
(“Mr. Lyons”). (Dkt. 66, at 1 (Defendants'
Undisputed Fact No. 1)). The raid was conducted pursuant to
two search warrants signed by a state District Court Judge.
(Dkt. 66-5 (Search Warrants)). Law enforcement officials were
searching for evidence of illicit drug possession.
(Id.). Defendant Misty Johnson (“Deputy
Johnson”), then a Deputy with the LCSO, was assigned to
secure and search the shop building and the surrounding area.
(Dkt. 66-1 (“Johnson Deposition I”), 50:12-15).
Deputy Johnson and other officers in her assigned unit
approached the shop building in marked patrol vehicles with
lights activated. (Johnson Deposition I, 40:6-18). Several
officers were in the patrol vehicle with Deputy Johnson,
including Latimer County Deputy Cody Donoley and John
Whiteaker, Chief of Police of the Town of Panama. (Johnson
Deposition I, 38:20-39:2). Deputy Johnson had been informed that
multiple individuals were suspected to be on the property,
and that gun violations and narcotic drugs were suspected to
be found during the raid. (Johnson Deposition I, 45:20-25).
Deputy Johnson's vehicle approached the shop building,
officers noticed a man standing near the shop building,
behind a pickup truck, now identified as Mr. Lyons. (Dkt.
66-2 (“Donoley Decl.”), at 2); Dkt. 66-3
(“Whiteaker Decl.”), at 2; Dkt. 66-4 (“LCSO
Incident Report”), at 26-27). Deputy Johnson advised
the officers in her vehicle that she would secure him. (Dkt.
66, at 2 (Defendants' Undisputed Fact No. 4). As the
vehicle stopped, Deputy Donoley, Chief Whiteaker, and Deputy
Johnson exited the vehicle, with all three yelling words to
the effect of, “Police, ” “law enforcement,
” and “search warrant.” (Donoley Decl., at
2-3; Whiteaker Decl., at 2; LCSO Incident Report, at 26-27).
Mr. Lyons denies hearing any officer yelling these
statements, but he does not dispute that the officers yelled
such statements. (Dkt. 66-7 (“Lyons Deposition
I”), 44:21-24; Dkt. 74-5 (“Lyons Deposition
Johnson moved toward the pickup, repeatedly shouting at Mr.
Lyons, whom she did not know or recognize, to stop and get on
the ground. (Johnson Deposition I, 9:13-15; 50:4-7;
52:10-12). Deputy Johnson was particularly concerned that she
could not see one of Mr. Lyons' hands and that he could
be armed with a weapon. (Id. at 53:6-54:13). Despite
the order to do so, Mr. Lyons did not get on the ground.
(Id. at 50:23-51:10; 52:10-12; 55:1-11). Mr. Lyons
does not dispute that Deputy Johnson ordered him to get on
the ground, although he testified at deposition that he did
not hear any such order. (Lyons Deposition I, 44:21-24;
disputed whether Mr. Lyons turned away from Deputy Johnson
following her commands, and whether Mr. Lyons began to walk
away from Deputy Johnson. (Compare LCSO Incident
Report, at 27 (Misty Johnson Narrative) (“Gary then
turned away from me as if to walk away or run”)
and Lyons Deposition I, 44:1-4 (Q. How did you-and
just so I'm straight, at no time did you turn away from
her or move from her; correct? A. Yes.”)). However, it
is undisputed that Mr. Lyons remained standing for
approximately twenty seconds as Deputy Johnson approached
him. (Lyons Deposition I, 45:11-14).
Mr. Lyons failed to get on the ground, Deputy Johnson
approached Mr. Lyons and performed an “arm bar”
technique on Mr. Lyons in order to take him to the ground.
(LCSO Incident Report, at 27). Deputy Johnson then handcuffed
Mr. Lyons behind his back while on the ground, and as she
raised him from the ground, she noticed Mr. Lyons was
bleeding from his forehead. (LCSO Incident Report, at 27;
Dkt. 66, at 4 (Defendants' Undisputed Fact No. 12)). An
ambulance was summoned to Mr. Lyons' aid, but Mr. Lyons
refused medical treatment upon its arrival, apart from
cleaning the wound and applying a bandage to the wound area.
(Dkt. 66-14 (EMS Patient Care Report)). Mr. Lyons was then
transported to the Latimer County Jail, where he again
refused medical treatment. (Dkt. 66-15 (Jail Entry Log); Dkt.
66-16 (EMS Patient Care Report)). After being bonded out of
jail, Mr. Lyons went to his residence. (Dkt. 66, at 5
(Defendants' Undisputed Fact No. 16). Later that morning,
Mr. Lyon's girlfriend Donna Cantrell
(“Plaintiff” or “Ms. Cantrell”)
noticed that Mr. Lyons appeared disoriented, and she took him
to the Indian Clinic in Talihina, Oklahoma. (Dkt. 66, at 6
(Defendants' Undisputed Fact No. 17)). He was then
transferred to Saint Francis Hospital in Tulsa, Oklahoma,
where he was determined to have a brain bleed.
(Id.). Mr. Lyons remained in the hospital for
treatment for approximately two weeks. (Id.).
Cantrell filed an Amended Complaint as “Next
Friend” of Mr. Lyons on March 28, 2017. (Dkt. 48). In
the Amended Complaint, as amended pursuant to the Court's
Order adding the Board of County Commissioners of Latimer
County (“Board”) as a party defendant (Dkt. 50),
Plaintiff asserts claims for (1) relief under 42 U.S.C.
§ 1983 against Deputy Johnson for unlawful use of
excessive force, and (2) relief for negligence pursuant to
the Oklahoma Governmental Tort Claims Act
(“OGTCA”), 51 Okl. Stat. §§ 151 et
seq., against the Board under a theory of respondeat
superior for Deputy Johnson's actions. (Dkt. 48,
September 5, 2017, both Defendants filed a Motion for Summary
Judgment on Plaintiff's claims against them. (Dkt. 66).
Plaintiff filed a Response in opposition on September 15,
2017. (Dkt. 74). Defendants filed a Reply on October 2, 2017.
(Dkt. 78). The Motion is fully briefed and ripe for review.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
dispute is genuine if the evidence is such that “a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is material if it “might
affect the outcome of the suit under the governing
law.” Id. In making this determination,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Id. at 255.
a party opposing a motion for summary judgment may not simply
allege there are disputed issues of fact; rather, the party
must support its assertions by citing to the record or by
showing the moving party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c). See Cone v.
Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th
Cir. 1994) (“Even though all doubts must be resolved in
[the nonmovant's] favor, allegations alone will not
defeat summary judgment.”) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). Moreover,
“[i]n a response to a motion for summary judgment, a
party cannot rely on ignorance of facts, on speculation, or
on suspicion and may not escape summary judgment in the mere
hope that something will turn up at trial.” Conaway
v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (citations
omitted). Thus, the inquiry for this Court is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52.