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Maher v. State ex rel. Oklahoma Tourism & Recreation Department

United States District Court, W.D. Oklahoma

March 15, 2018

ROGER T. MAHER, as Personal Representative of the ESTATE OF DAVID MAHER, Plaintiff,
v.
STATE OF OKLAHOMA ex rel. OKLAHOMA TOURISM & RECREATION DEPARTMENT, et al., Defendants.

          ORDER

          TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant's Motion for Summary Judgment [Doc. No. 60], filed pursuant to Fed.R.Civ.P. 56. Defendant Justin Young, the sole remaining defendant, seeks summary judgment on all claims pending against him.[1] Plaintiff has timely opposed the Motion [Doc. No. 76], and Defendant has replied [Doc. No. 83].[2] Thus, the Motion is fully briefed and at issue.[3]

         Plaintiff's Claims

         This action concerns Defendant's conduct as a park ranger employed by the Oklahoma Tourism and Recreation Department (“OTRD”) while on duty in McGee Creek State Park in Atoka County, Oklahoma. Plaintiff Roger Maher, personal representative of the Estate of David Maher, seeks to recover damages resulting from a confrontation between Defendant and David Maher (hereafter, “David”), a park patron, on May 4, 2013; Defendant first used pepper spray and later shot David through the window of a car he was driving, causing his death. Plaintiff alleges that Defendant lacked any factual basis to detain David, who was not suspected of any criminal activity in the park, or to use deadly force against him. Plaintiff asserts a claim under 42 U.S.C. § 1983 based on Defendant's alleged uses of excessive force in violation of the Fourth Amendment (see Compl. [Doc. No. 1-2], ¶¶ 21-23), and a negligence claim that allegedly is not subject to the Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51, §§ 151-72, because Defendant “was acting outside the scope of his employment” with OTRD (id. ¶ 27).[4]

         Defendant's Motion

         Defendant seeks summary judgment on Plaintiff's claims due to an alleged failure of proof and the defense of qualified immunity. When a defendant raises qualified immunity in a motion for summary judgment, “the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal quotation omitted). “If the plaintiff fails to satisfy either part of the inquiry, the court must grant qualified immunity.” Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017).

         “A plaintiff may show clearly established law by pointing to either a Supreme Court or Tenth Circuit decision, or the weight of authority from other courts, existing at the time of the alleged violation.” Id.; accord Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016). “‘We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.'” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting al-Kidd, 563 U.S. at 741); accord White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam). “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.'” Mullenix, 137 S.Ct. at 308. (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation omitted)). “In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law.” White, 137 S.Ct. at 551 (internal quotations omitted).

         Standard of Decision

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for either party. Id. at 255. All facts and reasonable inferences must be viewed in the light most favorable to the nonmovant. Id. If a party who would bear the burden of proof at trial lacks sufficient evidence on an essential element of its claim or defense, all other factual issues concerning the claim or defense become immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The movant bears the burden of demonstrating the absence of a dispute of material fact warranting summary judgment. Celotex, 477 U.S. at 322-23. If the movant carries this burden, the nonmovant must then go beyond the pleadings and “set forth specific facts” that would be admissible in evidence and that show a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671; see also Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials, but may consider other materials in the record.” See Fed. R. Civ. P. 56(c)(3). The Court's inquiry is whether the facts and evidence identified by the parties present “a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         Summary Judgment Evidence

         Plaintiff objects generally to Defendant's exhibits obtained from law enforcement agencies as improper summary judgment evidence, primarily on the ground that they constitute or contain inadmissible hearsay. See Pl.'s Resp. Br. [Doc. No. 76] at 8 n.1. Plaintiff asserts this objection specifically in response to certain paragraphs of Defendant's statement of facts, stating that the documents on which Defendant relies are hearsay. Defendant makes no response to Plaintiff's evidentiary objection in his reply brief.

         While Rule 56 allows the use of materials that are not usually admitted at trial, such as affidavits and depositions, “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” See Fed. R. Civ. P. 56(c)(2). Under this rule, “the form of evidence produced . . . at summary judgment may not need to be admissible at trial, [but] ‘the content or substance of the evidence must be admissible.'” Johnson v. Weld Cty., 594 F.3d 1202, 1210 (10th Cir. 2010) (quoting Thomas v. Int'l Bus. Mach., 48 F.3d 478, 485 (10th Cir. 1995)) (emphasis added in Johnson). Thus, in ruling on summary judgment, courts must disregard a hearsay statement if “there is a proper objection to its use and the proponent of the testimony can direct us to no applicable exception to the hearsay rule.” Montes v. Vail Clinic, 497 F.3d 1160, 1176 (10th Cir. 2007); see Johnson, 594 F.3d at 1209.

         With respect to some defense exhibits in this case, Plaintiff makes a valid objection. Defendant has submitted under seal interview reports and other documents prepared during an investigation by the Oklahoma State Bureau of Investigation (“OSBI”); the reports summarize interviews of key witnesses. See Def.'s Ex. 9 [Doc. No. 61-1], Ex. 14 [Doc. No. 61-3], Ex. 17 [Doc. No. 61-4], Ex. 20 [Doc. No. 61-6], Ex. 24 [Doc. No. 61-7], Ex. 25 [Doc. No. 61-8]. Defendant relies on the substance of the witnesses' reported statements to establish facts relevant to Plaintiff's claims, particularly what occurred between Defendant and David. Assuming the OSBI reports fall within a hearsay exception, the witnesses' statements to the OSBI agent would still constitute hearsay. See, e.g., Walker v. City of Okla. City, No. 98-6457, 2000 WL 135166, *8 (10th Cir. Feb. 7, 2000) (unpublished) (“It is well established that entries in a police report which result from the officer's own observations and knowledge may be admitted but that statements made by third persons with no business duty to report may not.”) (internal quotation omitted); see also Moore v. Indehar, 514 F.3d 756 (8th Cir. 2008) (district court ruling on summary judgment properly did not consider statements in police report that constituted hearsay); Tranter v. Orick, 460 F. App'x 513, 515 (6th Cir. 2012) (same).

         Defendant, as “the proponent of hearsay evidence bears the burden of establishing the applicability of a hearsay exception.” See United States v. Irvin, 682 F.3d 1254, 1262 (10th Cir. 2012). Because Defendant makes no effort to satisfy this burden, facts stated in his brief that are supported only by OSBI reports of witnesses' statements - and to which Plaintiff objects - will not be considered.[5] As a practical matter, however, this ruling has little impact on the discussion infra. The same eyewitnesses who were interviewed by OSBI agents have provided affidavits (Alicia Thompson and Teresa Werner) or deposition testimony (Loretta Swank), and/or gave voluntary statements to the Atoka County Sheriff's Office on the date of the shooting, stating their own accounts of what happened. See Def.'s Ex. 18 [Doc. No. 61-5] (Teresa Werner), Ex. 19 [Doc. No. 60-19] (Danny Fritcher), Ex. 22 [Doc. No. 60-22] (Alicia Thompson), Ex. 26 [Doc. No. 61-9] (Matt Thompson). Each voluntary statement is a signed, handwritten document and was provided to law enforcement authorities during an investigation. The Court finds this form of evidence substantially complies with the requirements of Rule 56(c)(4) regarding affidavits or declarations, and may be considered.

         Discussion

         A. Civil Rights Claim Under Section 1983

         Plaintiff claims that two separate uses of excessive force by Defendant against David violated the Fourth Amendment: 1) a use of pepper spray during either a consensual encounter or an investigatory detention or Terry stop;[6] and 2) a use of deadly force after David fled in response to the assault. Plaintiff contends the use of pepper spray constituted excessive force because Defendant attempted to detain David without reasonable suspicion of criminal activity, and Defendant's use of deadly force under the circumstances violated the well-established constitutional standards of Graham v. Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985). The Court finds it useful in the analysis of these similar but disparate claims to separately address each incident and the facts relevant to each under the arguments presented by the parties.

         1. Use of Pepper Spray

         a. Undisputed Facts[7]

         The events of May 4, 2013, began in the office of McGee Creek State Park, where Defendant was present when David came to pay a camping fee. When asked for his name, David gave the name on the credit card used to pay the fee, Loretta Swank. Defendant has testified that he considered this “odd, ” and when combined with a New York vehicle license plate, it gave him a “bad feeling.” See Young Dep. 87:19-88:6, 90:1-18. The park employee who received the payment has testified that she considered David's behavior “a little weird.” See Mansell Dep. 17:2-12.

         Later that day, Defendant was approached in the evening by visitors to the park, Teresa Werner and Danny Fritcher, who expressed concern about a couple who had entered the campsite of Ms. Werner's niece, Alicia Thompson, and her family. The couple, later identified as David and Ms. Swank, parked their vehicle after nightfall in a parking lot near the campsite occupied by the Thompson family, and walked into the campsite uninvited. When Ms. Thompson asked who they were, David said they were “just some people.” See Thompson Aff. [Doc. No. 60-10], ¶ 6. The couple approached the campfire, and the Thompsons offered them a soda or beer. David accepted a beer.

         Ms. Werner and Mr. Fritcher were visiting the Thompson family when the couple arrived, but soon left to go home. After leaving the campsite, Ms. Werner and Mr. Fritcher attempted to find the unidentified couple's campsite because they viewed the couple's behavior as odd, and had a “bad feeling” about the couple. See Werner Aff. [Doc. No. 60-21], ¶ 8. While looking for the campsite, Ms. Werner encountered Defendant and reported her concerns about the couple. Specifically, Ms. Werner told Defendant “about where the couple had parked their car, and how they came into Thompsons' campsite without invitation” and that she and Mr. Fritcher were going back to the campsite. Id. ¶¶ 12-13. Defendant followed Ms. Werner and Mr. Fritcher to the camping area.

         Defendant located the couple's car in the parking lot, approached it in his vehicle, and activated his emergency lights. It was clear that Defendant was a law enforcement officer. Defendant was approached by a woman, later determined to be Ms. Swank, who told him everything was fine. When he asked who was with her, Ms. Swank “made up some girl's name.” See Swank Dep. 133:6-10. Defendant has testified that he knew then “something was wrong” because Ms. Swank had a male companion. See Young Dep. 96:17-97:3.

         Defendant approached the Thompsons' campsite and identified himself as a park ranger. When he entered the campsite, Defendant saw David standing with a beer in one hand and the other hand in his pocket. Defendant has testified that he was apprehensive because David had a knife in a scabbard on his belt and seemed to be attempting to hide his identity. Defendant immediately directed David to show his hands, and David did not comply. Defendant asked David for identification, and David did not answer. Defendant has testified that David's lack of response added to his apprehension. Defendant drew a pepper spray canister from a holder on his belt, and twice directed David to show his hands or be pepper sprayed. David again refused to comply, and Defendant deployed the pepper spray. David dropped his beer can and ran away from the campsite.

         The evidence does not permit a determination that Defendant's effort to pepper spray David was successful, that is, that the spray reached David or had any effect. In a statement written the morning after the incident, Defendant stated he “deployed pepper spray to the suspect[']s face.” See Def.'s Ex. 31 [Doc. No. 60-31] at 1.[8] The parties cite no deposition testimony by Defendant on this issue. An OSBI report of an interview of Defendant states that he “attempted” to pepper spray David. See Def.'s Ex. 14 [Doc. No. 61-3] at 4.[9] Ms. Swank has testified that she does not know whether Defendant sprayed David or missed him; her testimony is that “David turned” and “attempted to evade the pepper spray” and “took off running.” See Swank Dep. 141:24-142:13, 143:5-8. Ms. Thompson has stated that “[Defendant] tried to pepper spray [David], but [he] ran into the woods.” See Thompson Aff. [Doc. No. 60-10] ¶ 32. In voluntary statements given to the Atoka County Sheriff's Office, Ms. Werner stated that Defendant “started to spray [David] and he took off running” (Def.'s Ex. 18 [Doc. No. 61-5] at 2), and Mr. Fritcher stated that Defendant “sprayed toward [David] and he turned his head and took off running.” See Def.'s Ex. 19 [Doc. No. 60-19] at 2. The medical examiner's autopsy report is silent concerning the presence of pepper spray on David's body or clothes, but there is no indication the medical examiner was asked to test for pepper spray.

         b. Constitutional Violation

         A Fourth Amendment claim of excessive force is governed by “a standard of objective reasonableness, judged from the perspective of a reasonable officer on the scene.” Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015); see Scott v. Harris, 550 U.S. 372, 381 (2007). Plaintiff's theory of liability with respect to Defendant's use of pepper spray is unclear. Plaintiff seems to argue alternatively that Defendant's initial contact with David was a consensual encounter and so using any force at all violated the Fourth Amendment, or it was an invalid Terry stop (lacking reasonable suspicion of criminal activity) for which the use of pepper spray violated the Fourth Amendment. See Pl.'s Resp. Br. [Doc. ...


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