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Redd v. Big Dog Holding Co. L.L.C.

United States District Court, W.D. Oklahoma

May 3, 2018

CHARLESETTA REDD, individually and as Personal Representative of the ESTATE of BRIAN SIMMS, JR., deceased, Plaintiff,


          ROBIN J. CAUTHRON United States District Judge

         On July 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 Department (“OKCPD”).

         During 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.

         Officer 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.

         Defendant 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 at issue.

         I. Standard

         A key 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.

         Fed. R. 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. 1998).

         II. Analysis

         A. Defendant Paul Galyon's Motion for Summary Judgment

         1. Gross Negligence

         Defendant 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.

         This 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 ...

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