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Harper v. Tirello

United States District Court, N.D. Oklahoma

December 20, 2017

DUANE HARPER, Plaintiff,
v.
NICHOLAS TIRELLO, Officer, in his individual capacity; JAMES C. PIRTLE, Sgt., in his individual capacity; DAVID J. OAKES, D.O., in his individual capacity; OTALVARO, D.O., in his individual capacity, Defendants.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE.

         This is a 42 U.S.C. § 1983 civil rights action. Plaintiff Duane Harper, represented by counsel, filed an amended complaint on March 20, 2017 (Dkt. # 39) suing four defendants in their individual capacities: Officer Nicholas Tirello, Sergeant James Pirtle, Detention Officer David Oakes, and Detention Officer Sebastian Otalvaro. Three defendants-Tirello, Oakes and Otalvaro-moved to dismiss the amended complaint for failure to state a claim. See Dkt. ## 52, 65. Pirtle filed an answer (Dkt. # 66). By Opinion and Order filed December 18, 2017 (Dkt. # 74), the Court determined that the amended complaint states only one plausible § 1983 claim against all four defendants: a Fourteenth Amendment excessive-force claim.

         Before the Court is Harper's motion for partial summary judgment against Pirtle and Oakes (Dkt. # 67). Citing Fed.R.Civ.P. 56, Harper seeks summary judgment against both defendants as to liability on his excessive-force claim and as to the defense of qualified immunity.[1] See Dkt. # 67 at 6-13. Pirtle and Oakes respond that summary judgment is inappropriate because the evidentiary materials cited by Harper reveal a genuine dispute as to several material facts and because Harper has not met his burdens to show that the defendants are not entitled to qualified immunity or that he is entitled to judgment as a matter of law on his excessive-force claim. See Dkt. # 68 at 3-9. Harper filed a reply (Dkt. # 71) to the defendants' response. For the reasons discussed below, the Court shall deny Harper's motion for partial summary judgment.

         I.

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Conversely, “summary judgment will not lie” if there exists a genuine dispute as to any material fact, “that is, 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 party asserting that a fact cannot be or is genuinely disputed must support the assertion by” either (1) “citing to particular parts of materials in the record” or (2) “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); see also LCvR 56.1 (providing that facts in supporting brief and response “shall be numbered and shall refer with particularity to those portions of the record” relied upon by the movant and opposing party). At the summary-judgment stage, the court's task “is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249). And, in applying the summary-judgment standard, the court “view[s] the evidence and the reasonable inferences to be drawn from the evidence in the light most favorable to the nonmoving party.” Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011)).

         II.

         Harper seeks partial summary judgment against Pirtle and Oakes as to (1) liability on his excessive-force claim and (2) the qualified-immunity defense. See Dkt. # 67 at 6-13. Harper contends that the facts from his sworn, pro se complaint (Dkt. # 1)[2] and the Special Report (Dkt. ## 18, 19, 21) demonstrate that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law on his excessive-force claim. See Dkt. # 67 at 3-4, 8-13. Harper further contends that the defendants are not entitled to qualified immunity because Harper has met his burden to show (1) a constitutional violation and (2) that the relevant law is clearly established. Id. at 6-8.

         In response, [3] Pirtle and Oakes argue that Harper's “undisputed facts” are either “not ‘undisputed' and [are] therefore immaterial for purposes of summary judgment, ” disputed by facts in the Special Report, or improper legal conclusions. Id. at 3-5. Pirtle and Oakes further argue that Harper has failed to provide any “substantive material evidentiary proof which would entitle him to judgment as a matter of law, ” and that the Special Report directly contradicts Harper's claim that the defendants used excessive force. Id. at 5-7. Finally, the defendants argue that Harper has not met his burden to overcome the qualified-immunity defense. Id. at 8-9.

         Upon consideration of Harper's motion, the evidentiary materials cited therein, the defendants' response, and Harper's reply, the Court agrees with the defendants that summary judgment is inappropriate because Harper has failed to meet his burden under Rule 56.

         As stated, this Court has previously determined that Harper's only plausible § 1983 claim is that the defendants violated his Fourteenth Amendment due process rights by using excessive force-i.e., by tasing him-after he caused a disruption in the food line, walked back to his jail cell, and then refused to comply with the defendants' repeated verbal orders to get on the ground of his cell. See Dkt. # 74 at 13-14. Thus, to show that he is entitled to judgment as a matter of law either as to his excessive-force claim or as to the qualified-immunity defense, Harper must show that the defendants' use of force was objectively unreasonable. See Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015) (holding that pretrial detainee asserting Fourteenth Amendment excessive-force claim “must show only that the force purposely or knowingly used against him was objectively unreasonable”); Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009) (explaining that in Fourth Amendment excessive-force cases, which are also analyzed under “reasonableness” standard, the qualified-immunity “inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken” (quoting Pearson v. Callahan, 555 U.S. 223, 244 (2009)). And Harper must make this showing “by citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1); see also Thomson, 584 F.3d at 1312 (explaining that while courts generally accept plaintiff's version of the facts in determining whether plaintiff has made two-part showing to defeat qualified-immunity defense, “a plaintiff's version of the facts must find support in the record” at the summary-judgment stage).

         In his statement of “undisputed facts, ” Harper generally directs this court to consider his original complaint, the Special Report, and “medical records that have been submitted as part of the Special Report” and he asserts that based on these materials he is entitled to judgment as a matter of law. See Dkt. # 67 at 3-4. However, for the most part, Harper fails to cite to any “particular parts of [these] materials” as required by Rule 56.[4] To be fair, Harper does cite Pirtle's answer and one portion of the Special Report to support his position that three facts are undisputed: (1) all four defendants gathered in the pod outside of Harper's cell, (2) Oakes opened the cell door, and (3) Pirtle used his Taser against Harper. The Court finds that these facts are undisputed. But while these undisputed facts demonstrate only that force was used, they do not support Harper's claim that the use of force was objectively unreasonable or that he is entitled to judgment as a matter of law.

         Harper claims that the defendants' use of force was objectively unreasonable, in large part, because he could not comply with the defendants' orders to get on the ground of his jail cell due to his physical disabilities. See Dkt. # 67 at 8-9; Dkt. # 71 at 3. And Harper specifically asserts that is undisputed that he has “disabilities [that] create a substantial loss of movement and ability to function, ” and that the TCSO placed him in a handicapped cell “because of his disabilities.” Dkt. # 67 at 3. But the defendants contend that these facts are disputed. And they cite a specific portion of the Special Report indicating that the TCSO placed Harper in a handicapped cell to better observe his mental health, because he has a history of “assaultive felonies, one on a detention officer” and because he “poses an increased threat to officers and other inmates.” See Dkt. # 68 at 3-4; Dkt. # 19-1.

         The Court finds that this is a genuine dispute of material fact that precludes summary judgment. A dispute is genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” and a fact is material when it “might affect the outcome of the suit under the governing [substantive] law.” Anderson, 477 U.S. at 248.

         Here, under the governing substantive law, several factors and considerations “bear on the reasonableness or unreasonableness of the force used” against a pretrial detainee. Kingsley, 135 S.Ct. at 2473. And a reasonable jury could reach different conclusions as to the objective reasonableness of the defendants' actions depending on whether the defendants faced a noncompliant pretrial detainee so physically disabled that he could not comply and that he likely would not present an immediate threat to them (as Harper contends) or whether the defendants faced a noncompliant pretrial detainee with minor physical disabilities, severe mental health issues, and a known history of violence toward detention officers (as the defendants contend). See Kingsley, 135 S.Ct. at 2473 (discussing several factors and considerations that may bear on the reasonableness of the force used). Because ...


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