United States District Court, W.D. Oklahoma
CHARLESETTA REDD, individually and as Personal Representative of the ESTATE of BRIAN SIMMS, JR., deceased, Plaintiff,
BIG DOG HOLDING COMPANY, L.L.C. d/b/a OKLAHOMA CITY PUBLIC FARMERS MARKET et al., Defendants.
MEMORANDUM OPINION AND ORDER
J. CAUTHRON United States District Judge
11, 2013, the fatal shooting of Brian Simms, Jr., gave rise
to the claims of the instant case. Simms was staying with a
girlfriend and visiting his friend, Vuntral Brown, in
Oklahoma City. Brown had a ticket to a Chief Keef concert
that was held on the premises of Defendant Oklahoma City
Public Farmers Market (“Farmers Market”). The
Farmers Market hired Defendant Event Security, L.L.C.
Defendant Event Security hired Defendant Paul Galyon, an
off-duty police officer for Defendant Oklahoma City Police
a conversation in the Farmers Market parking lot, Brown
informed Simms that there was a loaded weapon under the back
seat of the car. While Brown attended the concert, Simms sat
in the car in the Farmers Market parking lot. At some point,
Simms moved the car and backed it into a different parking
spot in the Farmers Market parking lot. During the concert,
Officers Paul Galyon and Antonio Escobar, both off-duty OKCPD
officers, patrolled the premises of the Farmers Market.
Galyon alleges that he saw an individual around or near the
driver's side of Brown's car and started to approach
the vehicle. Officers Galyon and Escobar noted Brown's
car was parked straddling the parking lot lines. On their
approach, Officers Galyon and Escobar saw a man, Simms,
sitting in the driver's seat with his eyes closed.
Officer Galyon called out to Simms. Officers Galyon and
Escobar allege that Simms had a gun in his lap or waistband.
Shortly after the initial encounter, Officer Galyon shot
Simms multiple times resulting in Simms' death. Plaintiff
filed suit on March 13, 2015.
Galyon, Defendant City of Oklahoma City (“OKC”),
and Defendant Bill Citty (“Citty”) have filed
separate Motions for Summary Judgment. Plaintiff has filed a
Motion for Partial Summary Judgment. All four Motions are now
policy goal and primary principle of Fed.R.Civ.P. 56 is
“to isolate and dispose of factually unsupported claims
or defenses.” Celotex Corp. v. Catrett, 477
U.S. 317, 323-24 (1986). Fed.R.Civ.P. 56 sets the standard
for summary judgment:
A party may move for summary judgment, identifying each claim
or defense-or the part of each claim or defense-on which
summary judgment is sought. 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
judgment as a matter of law.
Civ. P. 56(a). “Cross-motions for summary judgment are
to be treated separately; the denial of one does not require
the grant of another.” Buell Cabinet Co., Inc. v.
Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). Summary
judgment is appropriate “after adequate time for
discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp., 477 U.S. at 322. “[T]his standard provides
that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). It is also well
established that the “party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex
Corp., 477 U.S. at 323, (quoting Fed.R.Civ.P.
56) (“As to materiality, the substantive law will
identify which facts are material. Only disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 248.)
“When the moving party has carried its burden under
Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts. .
. . Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (footnote omitted). “In its
review, the Court construes the record in the light most
favorable to the party opposing summary judgment.”
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir.
Defendant Paul Galyon's Motion for Summary Judgment
Galyon argues that Plaintiff substantively alleges an assault
and battery claim, instead of a gross negligence claim, and
the statute of limitations has run on the assault and battery
claim. Plaintiff argues that she is not alleging any type of
assault and battery claim; Plaintiff subsequently argues that
an assault and battery claim requires the element of intent
and Plaintiff has not alleged Defendant acted with intent. In
this instance, “[w]hat controls is not the
pleader's designation of the nature of the cause of
action; rather, it is the substance of the pleading and the
nature of the issues raised thereby.” Kimberly v.
DeWitt, 1980 OK CIV APP 2, ¶ 6, 606 P.2d 612, 614.
It is undisputed that Defendant Galyon intended to discharge
his firearm aimed at Simms. Plaintiff is substantively
pleading a cause of action for assault and battery. Oklahoma
prescribes claims for assault and battery are subject to a
one-year statute of limitations. See 12 Okla. Stat.
§95(A)(4). The shooting occurred on July 11, 2013, and
Plaintiff's lawsuit was not filed until March 13, 2015.
Plaintiff has exceeded the statute of limitations for an
assault and battery claim.
Court finds that Plaintiff is substantively alleging an
assault and battery claim and Plaintiff's claim exceeded
the statutorily prescribed timeframe. This Court finds that