United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN, UNITED STATES MAGISTRATE JUDGE
issue is a Motion for Summary Judgment filed by Defendant
David Baisden. (ECF No. 65). The Court
should DENY the motion.
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).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).
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). The Court should: (1) conclude that
Defendant Baisden is not entitled to qualified immunity and
(2) reject Defendant Baisden's remaining arguments.
STANDARD OF REVIEW FOR QUALIFIED IMMUNITY
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).
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.
STANDARD OF REVIEW FOR SUMMARY JUDGMENT
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.
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).
DENIAL OF QUALIFIED IMMUNITY
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
Clearly Established Law Regarding a Claim of ...