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Lynch v. Board of County Commissioners of Muskogee County

United States District Court, E.D. Oklahoma

March 21, 2018

HOLLY LYNCH and DAVID RAY LYNCH, as next of kin to DAVID CODY LYNCH, deceased, and as Co-Special Administrators of the ESTATE OF DAVID CODY LYNCH, Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, OKLAHOMA, ex rel. MUSKOGEE COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

          OPINION AND ORDER

          James H. Payne, United States District Judge.

         Before the Court is the Defendant Derek Apple, in his official and individual capacities', (“Apple”) Motion for Summary Judgment filed April 7, 2017 [Dkt. 77]. The Court finds that Defendant Apple's Motion is granted.

         I. STANDARD OF REVIEW

         Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he 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 judgment as a matter of law.” Summary judgment is not a disfavored procedural shortcut, but an integral part of the federal rules as a whole. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

         In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court held that “there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” The Court further held that “if the evidence is merely colorable, or not significantly probative, summary judgment may be granted.” Id. In addition, the Anderson Court stated that “the mere existence of a scintilla of evidence in support of a plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff.” Id. A movant's summary judgment burden may properly be met by reference to the lack of evidence in support of plaintiff's position. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex, 477 U.S. at 325).

         Furthermore, as described by the court in Cone v. Longmont United Hosp. Ass'n., 14 F.3d 526 (10th Cir. 1994), “Even though all doubts must be resolved in (the nonmovant's) favor, allegations alone will not defeat summary judgment.” Cone at 530 (citing Celotex, 477 U.S. at 324). See also Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991); Roemer v. Pub. Serv. Co. of Colo., 911 F.Supp. 464, 469 (D. Colo. 1996). Moreover, “(i)n response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

         II. UNDISPUTED FACTS

         Reviewing the evidentiary material submitted by the parties, the Court finds that there are no material disputes as to the following facts:

         On April 3, 2015, the Decedent David Cody Lynch and his wife Plaintiff Holly Lynch attended a cookout at Holly's mother's house. His brother, Marshall Lynch, and his girlfriend Alyssa Hafenbrack, and their friend, Price Rogers, also attended the cookout. The Decedent consumed alcohol at the cookout and became intoxicated. The Decedent's autopsy report further indicates that he was under the influence of methamphetamine at the time of the subject incident. After the cookout, the Decedent and Marshall were doing “burnouts” and “donuts” in their trucks on the highway. The Decedent lost control of his truck, went through the ditch, crashed through a fence and got the truck stuck in another wire fence. His tailpipe caused a grass fire and someone called the police.

         On April 3, 2015 at approximately 11:35 p.m., City of Warner Police Officer Michael Shamblin responded to a call of a vehicle accident north of Warner, at State Highway 64 and East 158 Street, South in Muskogee County, Oklahoma. Officer Shamblin arrived on the scene at approximately 11:40 p.m. and saw two parked trucks. He spoke briefly to the two individual drivers and advised dispatch that Oklahoma Highway Patrol was not needed, but that he would need a deputy because one of the drivers, later identified as the Decedent appeared to be intoxicated.

         Officer Shamblin asked the Decedent numerous times to get out of the road and to step to the back of his vehicle where it was safe. The Decedent eventually complied and, as Officer Shamblin was questioning him, he began to mumble incoherently. Officer Shamblin leaned closer to the Decedent to hear him, and the Decedent then punched him in the face. A struggle ensued, and the Decedent hit Officer Shamblin in the face several more times until Shamblin took him to the ground. The two rolled around on the ground struggling, and eventually Officer Shamblin got on top of the Decedent, lying on top of his back, and was trying to control his hands. They ended up in a ditch - their heads were positioned up hill and their knees and feet were in the ditch. They were wet and muddy and Shamblin had a hard time maintaining a hold on the Decedent because he was slick. Shamblin was finally able to get the Decedent's right hand cuffed but could not get the left one cuffed because the Decedent was face down and his left hand was under his body and because the Decedent continued to struggle.

         Officer Shamblin became aware that there were several other people present because he could see their feet. The Decedent repeatedly yelled for them to attack Shamblin. The Decedent continued to struggle and Shamblin felt that he was beginning to lose what little control he had over him. He advised the Decedent that if he did not comply with his directives to give him his other hand, he was going to deploy his taser. The Decedent refused to comply with Officer Shamblin's directives and continued to threaten and struggle with Shamblin, so Shamblin tased him for one or two seconds. The taser did not appear to have any effect on the Decedent who continued to struggle. After tasing the Decedent, Officer Shamblin was finally able to get a hold of his left hand. He threw the taser off to the left and grabbed the Decedent's left hand. However, he was not able to get it cuffed at that time and the Decedent continued to struggle. At this point, Shamblin was exhausted.

         Marshall had called Plaintiff Holly Lynch and told her that the Decedent had been pulled over and was not cooperating with the police. He asked her to come to the scene to try and calm the Decedent down. She arrived at the scene about four minutes later. Shamblin told the bystanders that he needed them to call 911 immediately or he was going to have to shoot the Decedent. Alyssa Hafenbrack called 911 and held the phone down for Shamblin to speak into it. Shamblin advised the dispatcher that he needed help and requested him to send back up immediately.

         During the struggle, Marshall had also called the Decedent's father, Plaintiff David Ray Lynch, who was at home at the time, advised him of the Decedent's encounter with Officer Shamblin, and requested him to come to the scene of the incident. Mr. Lynch and his friend, Ruby Lindsey, immediately went to the scene. It took them only a matter of minutes to get there. The Decedent's father approached the Decedent and Officer Shamblin, who were still struggling, put his knee on the Decedent's back, slapped him in the face, and said, “Boy, give him your damn hand.” With the father's assistance, Shamblin was able to get the Decedent's hands cuffed at that time. Throughout these events, the Decedent continued to struggle with Shamblin and to encourage bystanders to attack Shamblin.

         Muskogee County Sheriff's Deputy Derek Apple responded to the original call and, at approximately 11:50 p.m., was notified by dispatch that Officer Shamblin requested him to hurry because he needed immediate help. Deputy Apple arrived at the scene at approximately 11:58 p.m. Officer Shamblin's duty belt had been broken during his struggle with the Decedent and his radio, extra magazine, and taser were scattered and missing. Upon arriving at the scene, Deputy Apple searched for Shamblin's missing equipment which took several minutes.

         City of Porum Police officers Jack Denny and Jerome Wildcat responded to dispatch at approximately 11:54 p.m. and arrived at the scene at approximately 11:58 p.m. Upon arriving at the scene, Officers Denny and Wildcat relieved an exhausted Shamblin in attempting to maintain control of the Decedent, who continued to struggle. Denny noted that Shamblin was covered in mud and his eyes were almost completely swollen shut. It was later determined that the Decedent had fractured Shamblin's left orbital eye socket. Officer Denny placed one knee on the Decedent's lower back and the other knee on the top of the Decedent's shoulders. Officer Wildcat straddled the Decedent's lower legs with his knees on the Decedent's calves. The Decedent continued to struggle and Denny repeatedly told him to stop fighting.

         Officer Shamblin and Deputy Apple then went to the trunk of his patrol vehicle and retrieved some additional restraints for transporting the Decedent. When Deputy Apple returned with the restraints, the Decedent was still combative. He was kicking, writhing, yelling and cursing, he bit at Officer Denny's legs, and he attempted to grab Officer Wildcat's firearm from his drop holster. Deputy Apple then shackled the Decedent's ankles and stood on the chain so that he could not kick his legs.

         As the other officers were finishing securing the additional restraints, the Decedent suddenly became unconscious. He had continued to struggle and vocalize up until that time. He had stopped breathing and the officers could not get a pulse. Officer Shamblin began CPR. Ruby Lindsey, who had CPR training, requested the officers to remove the handcuffs and lay the Decedent flat on his back. They did so and she again began to perform CPR on the Decedent with the assistance of the officers. Alyssa Hafenbrack, who was in nursing school, also assisted. Deputy Apple attempted to contact EMS through his radio, but he was not able to do so due to bad reception. Muskogee County Sheriff's Deputy Robert Jackson arrived at the scene at approximately 12:06 a.m. After exiting his vehicle, he heard someone say “he's not breathing, ” so, Jackson notified dispatch to alert EMS at approximately 12:07 a.m. The officers, Hafenbrack, and Lindsey continued to perform CPR on the Decedent until EMS arrived.

         EMS arrived at approximately 12:14 a.m., and took over the scene. The Decedent was then transported to the Eastar Hospital. The Decedent was pronounced dead at the hospital at approximately 1:07 a.m.

         III. ANALYSIS

         A. Plaintiffs' 42 U.S.C. § 1983 Claim

         The Plaintiffs assert claims against Defendant Apple in his individual capacity arising under 42 U.S.C. § 1983.[1] Specifically, the Plaintiffs allege that the Decedent's rights under the Fourth Amendment were violated by the alleged unlawful use of excessive force.[2]

         Section 1983 creates no substantive civil rights, but rather only provides a procedural mechanism for enforcing rights established elsewhere. See Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Gallegos v. City and County of Denver, 984 F.2d 358, 362 (10th Cir. 1993). See also Miller v. Hawver, 474 F.Supp. 441, 442 n.1 (D. Colo. 1979) (§ 1983 is not a general or common law tort claims statute). To sustain a § 1983 claim, Plaintiff must present “specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.” Barr v. Abrams, 810 F.2d 358, 363 (2nd Cir. 1987). In that regard, Plaintiffs have clearly failed to state a § 1983 claim against the Defendants which is plausible on its face or which arises above a speculative level as required by Twombly, supra.

         To establish liability under §1983 against Defendant Apple in his individual capacity, Plaintiffs must show that he acted under color of state law and that he personally participated in the alleged constitutional violation(s). See Bruner v .Baker, 506 F.3d 1021, 1026 (10th Cir. 2007); Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997); Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). In order for liability to arise under § 1983, a defendant's direct personal responsibility for the claimed deprivation of a constitutional right must be established. Novitsky v. City of Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007) (police officer who was present at scene but who did not assist or direct other officer in removing arrestee from vehicle did not violate Fourth Amendment; he did not “personally participate” in the use of the twist-lock restraint).

         In Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865 (1989), the Supreme Court stated:

Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.... Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application ... its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight...The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation. As in other Fourth Amendment contexts, however, the reasonableness inquiry in an excessive force case is an objective one: the question is ...

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