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Florie v. Breedlove

United States District Court, E.D. Oklahoma

March 20, 2018

BRYANT S. FLORIE, Plaintiff,
v.
OFFICER BREEDLOVE, et al., Defendant.

          OPINION AND ORDER

          James H. Payne, United States District Judge.

         This action is before the Court on Defendants' motions to dismiss Plaintiff's third amended civil rights complaint pursuant to 42 U.S.C. § 1983. The Court has before it for consideration the third amended complaint (Dkt. 63), Defendant Derrik Vigil's motion to dismiss (Dkt. 79), Defendants Breedlove and Jason Bumgarner's motion to dismiss (Dkt. 82), and Plaintiff's responses to the motions (Dkts. 92, 93, and 94).

         Plaintiff, a pro se state prisoner who is incarcerated at North Fork Correctional Center in Sayre, Oklahoma, brought this action pursuant to 42 U.S.C. § 1983, seeking relief for alleged constitutional violations surrounding his arrest in Seminole County, Oklahoma, on February 18, 2016.[1] The defendants are Officer Jason Bumgarner of the Seminole Police Department and Officers Breedlove and Derek Vigil of the Wewoka, Oklahoma, Police Department.

         Background

         Plaintiff alleges that on February 17, 2016, he received a security alarm for his house about a mile away. He drove to the house and saw two individuals run out the front door which had been kicked in. Plaintiff got into a physical altercation with a third person who still was in the house.

         The police arrived about an hour later. Plaintiff knew Deputy Brooks and allowed him into the house. Brooks told Defendant Officer Breedlove to look at the door, which had a footprint on it. Deputy Brooks did not look at Plaintiff's video surveillance footage, because Brooks was only a back-up and was outside his jurisdiction. Brooks called Defendant Officer Jason Bumgarner, and Bumgarner advised Plaintiff that he had instructions to arrest Plaintiff.

         Plaintiff asked the officers to look at the footprints of the supposed victims and others who allegedly were at the scene, in an attempt to match the footprint on the door. The officers, however, did not check the footprints. When Plaintiff mentioned the surveillance videos on his cameras and phones, Officers Breedlove and Vigil took both phones. The district attorney later told the judge that the Wewoka Police Department had lost the phones, and phone records were subpoenaed. Plaintiff asserts Officers Vigil and Breedlove were out of their jurisdiction, and if the county had been in charge of the case, he would be free. (Dkt. 63 at 7-8).

         The third amended complaint raises three claims:

[Count I]: Officer Breedlove and Vigil refused to investigate the kicked in door in my residence & compare foot prints with people there 2-17-2016.
Count II: Also Officer Vigil & Breedlove (took surveillance footage frome [sic] alleged crime scene and now it cant [sic] be found) after Deputy Brooks witness [sic] them take it 2-18-2016.
Officer Jason Bumgarner refused to investigate a possible burglary and was lead officer but possibly out of jurisdiction.
Count III: Also Officer Bumgarner refused to even look at the surveillance footage of the entire incodent [sic] I am incarcerated for 2-17-2016 & 2-18-16.
All 3 officers refused protocol and only wished to arrest me and not investigate the truth on 2-17-16 2-18-16. See all motiones [sic] and transcripts in plaintiff's ...

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