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Smith v. Mantle

United States District Court, W.D. Oklahoma

February 21, 2018

FRANKLIN SMITH, Plaintiff,
v.
MANTLE, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         At issue is a Motion for Summary Judgment filed by Defendant David Baisden. (ECF No. 65). The Court should DENY the motion.

         I. BACKGROUND

         Defendant Baisden is employed by a private company which supervises off-duty law enforcement officers who work as security guards in Bricktown. (ECF No. 65-2:1).[1]On April 29, 2015, Defendant Baisden responded to a call from a manager at a restaurant in Bricktown regarding a disturbance involving Mr. Smith. (ECF No. 65-2:1). Defendant Baisden called the Oklahoma City Police Department and Officer Stacey Bowein arrived on the scene. (ECF No. 65-2:1). Ultimately, Officer Bowein arrested Mr. Smith for public intoxication. (ECF No. 66-1:6-7). Mr. Smith alleges that during the arrest, Officer Bowein exhibited excessive force by: (1) slamming him against the police vehicle, injuring his back, (2) hitting his head on the door frame of the vehicle, and (3) cutting the circulation off in his wrists by first using his backpack straps as handcuffs. (ECF No. 1:3). Plaintiff alleges that although Defendant Baisden was present during the arrest, he failed to intervene to prevent Defendant Bowein's use of excessive force. (ECF No. 1:2, 3). Previously, the Court determined that the allegations against Defendant Baisden were sufficient to state a claim for failure to intervene. (ECF Nos. 12, 14, 54, 60).

         Defendant Baisden has filed a Motion for Summary Judgment, arguing that he is entitled to qualified immunity, and that Plaintiff has failed to demonstrate: (1) the use of excessive force in violation of the Fourth Amendment, (2) that Defendant Baisden had an opportunity to intervene to prevent the use of excessive force, and (3) an entitlement to damages. (ECF No. 65:14-26).[2] The Court should: (1) conclude that Defendant Baisden is not entitled to qualified immunity and (2) reject Defendant Baisden's remaining arguments.

         II. STANDARD OF REVIEW FOR QUALIFIED IMMUNITY

         Qualified immunity protects law enforcement officials who are required to exercise their discretion by shielding them from liability for harm caused by reasonable mistakes. Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009). When a defendant asserts qualified immunity at the summary judgment stage, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right, and (2) the constitutional right was clearly established at the time of the defendant's conduct. Callahan v. Unified Gov't of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015). In evaluating a plaintiff's defense to an assertion of qualified immunity, courts must “determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court, ” before inquiring into whether there are genuine issues of material fact for resolution by the jury. Thomson v. Salt Lake Co., 584 F.3d 1304, 1326-27 (10th Cir. 2009) (Holmes, J., concurring). “[T]his usually means adopting . . . the plaintiff's version of the facts, ” Scott v. Harris, 550 U.S. 372, 378 (2007), unless that version “is so utterly discredited by the record that no reasonable jury could have believed him.” Id. at 380. “If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment-showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.” Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) (internal quotation marks omitted).

         “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.' ” Harte v. Bd. of Commissioners of Cty. of Johnson, Kansas, 864 F.3d 1154, 1179 (10th Cir. 2017), cert. dismissed sub nom. Bd. of Cty. Comm'rs of Johnson Cty., Kansas v. Harte, 138 S.Ct. 576 (2018) (citing Mullenix v. Luna, 136 S.Ct. 305, 308, (2015)). “[T]o show that a right is clearly established, the plaintiff must point to a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Callahan, 806 F.3d at 1027 (internal citation omitted). To prevail against a defendant's assertion of qualified immunity, the plaintiff need not identify a case holding the exact conduct in question unlawful. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). The focus is whether the law at the time of the defendant's conduct provided the defendant with “fair notice” regarding the legality of his conduct. Id.

         III. STANDARD OF REVIEW FOR SUMMARY JUDGMENT

         Under Rule 56 of the Federal Rules of Civil Procedure, the court shall grant summary judgment “if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). Once a moving party shows entitlement to judgment as a matter of law, the burden shifts to the nonmoving party to point out the specific facts that create disputes. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party must present some evidence, other than its initial pleadings, to show that there is more than just a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Celotex, 477 U.S. at 324 (quoting Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by [other sworn evidence], designate ‘specific facts showing that there is a genuine issue for trial.'”). In ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

         To defeat a motion for summary judgment, evidence must be based on more than mere speculation, conjecture or surmise. Rice v. United States, 166 F.3d 1088, 1091-1092 (10th Cir. 1999). Moreover, the existence of a factual issue does not preclude entry of summary judgment where there is no evidence to support a dispute on that issue or the evidence is so one-sided that no reasonable juror could find for the other side. True v. United States, 190 F.3d 1165, 1177 (10th Cir. 1999). Conclusory allegations will not create a genuine issue of material fact defeating a summary judgment motion. White v. York Int'l Corp., 45 F.3d 357, 363 (10th Cir. 1995).

         IV. DENIAL OF QUALIFIED IMMUNITY

         Plaintiff alleges that while arresting him, Defendant Bowein used excessive force in violation of the Fourth Amendment and Defendant Baisden failed to prevent Defendant Bowein from acting. Defendant Baisden argues that he is entitled to qualified immunity on the failure to intervene claim. (ECF No. 65:23-27). Accordingly, the burden shifts to Mr. Smith to set forth allegations which would establish that: (1) Defendant Baisden violated a constitutional right, and (2) the constitutional right was clearly established at the time of defendant's conduct. Callahan, 806 F.3d at 1027; Thomson v. Salt Lake Co., 584 F.3d at 1326-27.

         A. Clearly Established Law Regarding a Claim of ...


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