United States District Court, W.D. Oklahoma
WILLIE D. McCALISTER, Plaintiff,
OKLAHOMA CITY POLICE DEPARTMENT, et al., Defendants.
HEATON CHIEF, U.S. DISTRICT JUDGE.
Willie D. McCalister filed this § 1983 action against
the Oklahoma City Police Department and Oklahoma City police
officers Josh Castlebury and Chris Grimes. He claims the
officers subjected him to excessive force when arresting
Consistent with 28 U.S.C. §636, the matter was referred
for initial proceedings to Magistrate Judge Charles B.
Goodwin. He has issued a Report and Recommendation
(“Report”) regarding cross motions for summary
judgment filed by the parties. He recommends that
plaintiff's motion be denied in its entirety and that
defendants' motion be granted in part and denied in
material facts surrounding plaintiff's arrest are, for
the most part, undisputed. See Doc. #77, pp. 6-7
& n.5. On the evening of July 31, 2014,
defendants Grimes and Castlebury were patrolling the Heritage
Apartments in Oklahoma City, a complex known for gang and
narcotics activity. Defendant Grimes noticed a strong odor of
marijuana coming from the open door of an apartment. From
what he could see inside the apartment - a person holding a
roll of money talking to someone else - he concluded a drug
deal was taking place. He told defendant Castlebury what was
happening and then pushed the door open and entered the
apartment to investigate the marijuana odor. Defendant
Castlebury walked in behind him and they saw plaintiff run
into the kitchen holding a plastic bag containing what
appeared to be a brick of marijuana. While defendant Grimes
took another person, Jeron Blandon, into custody, defendant
Castlebury approached plaintiff and ordered him to get on the
parties dispute some of the facts regarding what happened
next while defendant Castlebury was subduing plaintiff and
taking him into custody. However, the magistrate judge states
the following is not disputed: “Defendant Castlebury
took Plaintiff to the ground by grasping the back of
Plaintiff's head, struck Plaintiff in the face at least
once, and handcuffed Plaintiff's hands behind his back
while he was lying prone on the floor.” Doc. #77, p. 8.
He states that “[t]he parties also agree that
Plaintiff's face, head, and bare shoulders were
photographed immediately after the incident occurred, and
that the photocopies of the undated color photographs that
Defendants submitted with their motion accurately depict the
injuries [Plaintiff] sustained.” Id. (internal
citations and quotation marks omitted).
was transported to the Integris Southwest Medical Center
emergency department to be medically cleared before being
taken to jail. Medical records attached to the complaint show
that plaintiff was diagnosed with a head injury or
concussion, which did “not appear serious at th[e]
time, ” and had suffered contusions on his face, head
and upper extremities.” Doc. #1-1, pp 6, 13, 21.
Testing showed “[s]oft tissue swelling in the left
temporal scalp, ” id. at p. 20, but, as the
magistrate judge notes, “no dislocations, fractures, or
internal bleeding around Plaintiff's head and
shoulders.” Doc. #77, p. 9; see Doc. #1-1, pp.
15, 20-21. The attending physician discharged plaintiff into
police custody with a prescription for
acetaminophen-hydrocodone for pain. Plaintiff alleges in his
complaint that defendant Castlebury used excessive force when
effecting his arrest and that defendant Grimes “in his
supervisory capacity failed to intervene or stop [Defendant]
Castlebury's abusive treatment.” Doc. 1, p. 7.
Report, the magistrate judge first addressed the motions
filed by defendants Castlebury and Grimes. He agreed with
defendant Castlebury that his conduct was objectively
reasonable up to the point where he placed plaintiff in
handcuffs because plaintiff was resisting arrest and was a
threat to the safety of the officers inside the small
apartment. However, he concluded that a genuine factual
dispute exists over what happened after plaintiff was
restrained - whether at that point, as plaintiff contends in
his affidavit, defendant Castlebury used excessive force by
stomping on his head.
defendant Grimes, the magistrate judge concluded plaintiff
failed to present evidence that he had a reasonable
opportunity to intervene and prevent defendant
Castlebury's asserted use of excessive
force. He determined the evidence was undisputed
that, at the time defendant Castlebury was struggling with
plaintiff elsewhere inside the apartment,  defendant Grimes
“was engaged with another suspect.” Doc. #77, p.
motion plaintiff sought summary judgment on his claims
against both defendants. The magistrate judge concluded
plaintiff's motion should be denied. He determined
material questions of fact exist with respect to
plaintiff's excessive force claim against defendant
Castlebury, such as whether the amount of force used was
excessive and “whether a reasonable officer on the
scene would have thought Plaintiff was ‘actively
resisting arrest' and posed ‘an immediate
threat' to officers and others inside the
apartment.” Doc. #77, p. 23 (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). And for the reason
discussed earlier --the lack of evidence that he had an
opportunity to intervene -- the magistrate judge concluded
that plaintiff was not entitled to summary judgment against
magistrate judge addressed one final issue. Plaintiff named
the Oklahoma City Police Department (“OCPD”) in
the caption of his complaint, but did not make any
allegations against the OCPD or attempt to serve it. The
magistrate judge concluded plaintiff had therefore failed to
state a claim against the OCPD and his claims against it
should be dismissed without prejudice.
and defendant Castlebury filed objections to the Report.
Plaintiff argues that defendant Grimes was “5 feet away
from J. Castlebury during the assault against Plaintiff,
not in another part of the
apartment.” Doc. #78, pp. 1-2. He also asserts that
because it was a “one bedroom apartment, ” which
was “not that big, ” defendant Castlebury
“could clearly see what was going on.”
Id. at p. 2. One problem is plaintiff does not
substantiate or offer any evidence to support his statements
in his objection. A more serious problem, though, is
plaintiff admitted, by not controverting defendants'
facts in their summary judgment motion, that at the time
“Officer Castlebury was struggling with [him], Sgt.
Grimes was attempting to secure Jeron Blandon for officer
safety.” Doc. #63, p. 2, ¶4. Plaintiff thus, in
effect, conceded that defendant Grimes could not have had
“a realistic opportunity to intervene to prevent the
harm from occurring.” Vondrak v. City of Las
Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008). And he is
required to establish that the defendant had the ability to
intercede “[i]n order for liability to attach.”
Id. Simply being close by would not be enough to
hold defendant Grimes liable under § 1983 if he was, at
the very same time, trying to subdue another suspect.
Plaintiff has failed to offer any evidence creating a fact
question as to whether defendant Grimes was “capable of
preventing the harm [to plaintiff] being caused by another
officer.” Id. The magistrate judge therefore
correctly concluded that, based on the undisputed facts,
defendant Grimes is entitled to summary judgment. His request
for summary judgment will be granted.
Castlebury objects to the magistrate judge's
determination that he is not entitled to summary judgment
because a material fact question remains with respect to what
occurred after plaintiff was handcuffed. He relies on the
Supreme Court's decision in Scott v. Harris, 550
U.S. 372 (2007), which he argues the magistrate judge read
too narrowly. The court disagrees.
Supreme Court held in Scott that “[w]hen
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.” Id. at 380. However, as the
magistrate points out, Scott included “a
videotape capturing the events in question.”
Id. at 378. Here, though, the photographs defendant
Canterbury is relying on do not depict the actual event as it
unfolded. Rather, the only evidence as to what happened after
plaintiff was restrained are the differing accounts of the
parties. The correct question, as framed by the magistrate
judge, is whether the “depictions of the visible
effects of the alleged postrestraint assault, i.e., the
relatively ‘minor' injuries shown in the
photographs and medical records, cause Plaintiff's
account of what happened to be ‘so utterly
discredited' that no reasonable jury could believe
it.” Doc. #77, p. 17 (quoting Scott, 550 U.S.
at 380). The magistrate judge concluded a reasonable jury
could believe plaintiff's sworn version of the incident,
despite the photographs showing limited injuries. The photos
might “speak to the extent of Plaintiff's injuries
(and damages), ” but a jury could nonetheless find that
defendant Castlebury used excessive force after plaintiff was
restrained. Doc. #77, p. 17.
magistrate judge also found plaintiff's testimony to be
supported, rather than negated, by the medical records. For
example, he cites plaintiff's discharge papers showing
“that he was assessed with a minor concussion that
could have resulted ‘from a blow to the
head.'” Doc. #77, p. 18 (quoting Doc. #1-1, p.6).
That distinguishes this case from Bruner v. Stevens,
2014 WL 4435931 (W.D.Okla. Sept. 9, 2014), another case
relied on by defendant.
Tenth Circuit's discussion of Scott in
Rhoads v. Miller, 352 Fed.Appx. 289, 291 (10th Cir.
2009), where the court was considering a denial of qualified
immunity, also is instructive. The court noted that, when
considering whether a defendant is entitled to qualified
immunity it usually adopted the plaintiff's version of
the facts, unless “that version ‘is so utterly
discredited by the record that no reasonable jury could have
believed him.'” Id. (quoting
Scott, 550 U.S. at 380). While there were obvious
issues in Rhoads with the plaintiff's testimony
- he was an alcoholic and had admitted memory problems - the
court determined that the Scott standard was not
met. After observing that, “[i]n Scott, the
plaintiff's testimony was discredited by a videotape that
completely contradicted his version of the events, ”
the Tenth Circuit stated: “Here, there is no videotape
or similar evidence in the record to blatantly contradict Mr.
Rhoads' testimony. There is only other witnesses'
testimony to oppose his version of the facts, and our
judicial system leaves credibility determinations to the
jury.” Id. (internal citations omitted);
see also Cordero v. Froats, 613 Fed.Appx. 768, 769
(10th Cir. 2015) (concluding Scott ...