United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
civil rights action, plaintiff Duane Harper claims that on
February 9, 2015, defendants Sergeant James Pirtle, Detention
Officer Sebastian Otalvaro, Detention Officer David Oakes,
and Deputy Nicholas Tirello violated his Fourteenth Amendment
right to be free from the use of excessive force while he was
detained in the David L. Moss Criminal Justice Center
(“Tulsa County Jail”) on alleged probation
violations. Before the Court is defendants' motion for
summary judgment (Dkt. # 109). Harper filed a response (Dkt.
# 114), and defendants filed a reply (Dkt. # 121). For the
reasons discussed below, the Court finds defendants are
entitled to qualified immunity. Therefore, the Court shall
grant defendants' motion for summary judgment, deny
Harper's request for summary judgment,  and declare moot
defendants' motion to strike (Dkt. # 110) and motion in
limine (Dkt. # 111).
following facts are either undisputed or viewed in the light
most favorable to Harper.On January 7, 2015, Harper was arrested
on outstanding felony warrants in two Tulsa County District
Court cases, Nos. CF-2013-2465 and CF-2013-2140A, and booked
into the Tulsa County Jail. Dkt. # 109-1, at
I d. at 2. During the booking process, the intake officer
observed no visible signs of injury or trauma and no physical
handicaps. Dkt. # 109-2, at 2. However, Harper answered
“yes” in response to the following questions:
“Are you injured or currently under psychiatric or a
general Doctor's Care?” and “Are you
currently taking any prescription medications.”
Id. When Harper was booked into jail, he received a
copy of an inmate handbook which outlined his expected
conduct, rules, discipline, right to hearings, classification
level and housing assignments. Dkt. # 109-3.
inmate housing history sheet reflects that, on January 16,
2015, Harper refused to go to “max pod” and
threatened to commit suicide. Dkt. # 109-4, at 3. Notes
corresponding to the January 16, 2015 entry further reflect
that Harper was “a known issue in the jail and has
prevous [sic] assaultive felonies, one on a detention
officer, ” and “has mental health issues and
poses an increased threat to officers and other
inmates.” Id. Harper was placed in a
segregated cell and, several days later, was moved to a
mental health cell. Id. at 2-3. On January 28, 2015,
Harper was “cleared from mental health” and
returned to general population. Id. at 2. Later that
evening, Harper was involved in a physical altercation with
other inmates. Dkt. # 109-5, at 2-3. After the altercation,
Harper was examined in the medical unit and cleared for
confinement in administrative segregation. Id. at 8.
During the examination, the nurse observed Harper had facial
injuries but was “ambulatory” and reported that
Harper “denied other areas of injury.” Dkt. #
109-15, at 2. Shortly after the examination, Harper reported
to the nurse that he also hurt his right knee when he slipped
and fell near the shower immediately before the altercation.
Id. As a result of the altercation, Harper was
placed in administrative segregation on January 29, 2015.
Dkt. # 109-4, at 2. The next day, Harper was moved to a cell
in the J-14 pod. Id.
February 1, 2015, Harper submitted a request through the
jail's kiosk message system. Dkt. # 114-4, at 7.
Specifically, he requested to be seen by a nurse or doctor
for a physical so he could start a job. Id. The next
day, Harper received a response indicating he had a physical
on January 19, 2015, and was “not cleared for
work.” Id. Later that day, Harper asked why he
was not cleared for work and stated, “My body moves
fine and I feel great can you please tell me what the reason
is that I can [sic] work a job?” Id. Medical
records submitted by Harper and relevant to his physical
condition at the time of the alleged excessive-force incident
reflect that he was treated in 2009 and 2010 for significant
osteoarthritis in his right knee and right shoulder and that
he is diabetic. Dkt. # 100-3, at 3, 8.
morning of February 9, 2015, Harper was in the food line and
became upset when Detention Officer Megan Palmer took the
cellophane off his food tray. Dkt. # 109-7, at 3. Harper
threatened to, and ultimately did, throw his food tray on the
ground near Palmer's feet. Id. Palmer called for
assistance and told the pod to lock down; Harper walked away
to his jail cell. Id.
responded to Palmer's call for assistance. Dkt. # 109-8
(Pirtle Affidavit), at 2; Dkt. # 109-9 (Otalvaro Affidavit),
at 2; Dkt. # 109-10 (Oakes Affidavit), at 2; Dkt. # 109-11
(Tirello Affidavit), at 2. Tirello began locking down the
J-14 pod and getting inmates into their cells. Dkt. # 109-11,
at 2. Pirtle, a supervisor, decided Harper should be
restrained and placed in administrative segregation based on
Harper's interaction with Palmer. Dkt. # 109-8, at 2.
Oakes was the first to arrive at Harper's cell door. Dkt.
# 109-10, at 2. Oakes ordered Harper to lay down on the
ground. Id. According to Oakes, Harper “shook
his head ‘no' and refused to comply.”
Id. Pirtle joined Oakes outside the door of
Harper's cell, followed shortly thereafter by Otalvaro.
Dkt. # 109-8, at 2; Dkt. # 109-9, at 2. Pirtle unlocked the
cell door, and Oakes opened the door. Dkt. # 109-8, at 3.
Pirtle ordered Harper to get on the ground two more times,
but Harper did not comply. Id.; Dkt. # 109-9, at 2;
Dkt. # 109-10, at 2. Instead, Harper, who was sitting on his
bed, “shook his head from side to side and refused to
comply.” Dkt. # 109-8, at 3; Dkt. # 109-9, at 2;
Dkt. # 109-10, at 2. Tirello headed in Pirtle's direction
when he heard Pirtle ordering Harper to the ground. Dkt. #
109-11, at 2.
Tirello arrived, Pirtle presented his Taser and twice ordered
Harper to get on the ground; Harper did not comply. Dkt. #
109-8, at 3; Dkt. # 109-9, at 2; Dkt. # 109-10, at 2. Pirtle
then deployed his Taser and the cartridge probes contacted
Harper, causing him to fall to the ground. Dkt. # 109-8, at
3; Dkt. # 109-9, at 2; Dkt. # 109-10, at 3. Tirello arrived
at Harper's cell just as Pirtle deployed his Taser. Dkt.
# 109-11, at 2. After the Taser's five-second cycle
ended, Tirello, Oakes, and Otalvaro entered Harper's
cell, removed the Taser's probes, and placed him in
handcuffs. Dkt. # 109-8, at 3; Dkt. # 109-12, at 2. Tirello
and Oakes then escorted Harper to the medical unit for a
physical examination. Dkt. # 109-10, at 3; Dkt. # 109-11, at
2. Nurse Jessica Mobley examined Harper and cleared him for
confinement in administrative segregation. Dkt. # 109-13, at
2. Although Harper complained of shoulder pain, Mobley did
not find any apparent injuries during the examination.
Id.; Dkt. # 109-6, at 2; Dkt. # 109-15, at 11-12.
Following the examination, Harper was placed in
administrative segregation. Dkt. # 109-8, at 4.
judgment is appropriate “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); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Conversely, “summary judgment
will not lie” if there exists a genuine dispute as to
any material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is genuine when
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, ” and a fact
is material when it “might affect the outcome of the
suit under the governing [substantive] law.”
Id. At the summary-judgment stage, the court's
task “is not ‘to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.'” Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting
Anderson, 477 U.S. at 249). In applying the
summary-judgment standard, the court “view[s] the
evidence and the reasonable inferences to be drawn from the
evidence in the light most favorable to the nonmoving
party.” Hiatt v. Colo. Seminary, 858 F.3d
1307, 1315 (10th Cir. 2017) (quoting Twigg v. Hawker
Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011)).
But the Court is not required to adopt plaintiff's
version of the facts if that version lacks record support,
Thomson, 584 F.3d at 1325, or is “blatantly
contradicted” by the record, Scott v. Harris,
550 U.S. 372, 380 (2007). “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., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
First Nat'l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 288 (1968)). Consistent with the plain language
of Rule 56(a), the movant bears the ultimate burden to show
there are no genuine issues for the jury to resolve and that
the movant is entitled to judgment as a matter of law.
Thomson, 584 F.3d at 1326.
when a defendant moves for summary judgment on the basis of
qualified immunity, “[t]he plaintiff first must
shoulder a heavy two-part burden.” Id. at
1325. In determining whether plaintiff has met his or her
burden to show “(1) that defendant violated a
constitutional right and (2) that the right was clearly
established, ordinarily courts must ‘adopt'
plaintiff's ‘version of the facts.'”
Id. (quoting Scott, 550 U.S. at 380).
Nonetheless, as discussed, “a plaintiff's version
of the facts must find support in the record” at the
summary-judgment stage. Id. And the court need not
adopt plaintiff's version of the facts if that version is
“‘so utterly discredited by the record that no
reasonable jury could have believed' it.”
Id. (quoting Scott, 550 U.S. at 380). The
court has discretion to determine “which of the two
prongs of the qualified immunity analysis should be addressed
first, ” Pearson v. Callahan, 555 U.S. 223,
236 (2009), “and may resolve the question by finding
either requirement is not met, ” Mascorro v.
Billings, 656 F.3d 1198, 1204 (10th Cir. 2011).
amended complaint presents one claim: that defendants
violated his Fourteenth Amendment due process rights by using
excessive force-i.e., by tasering him-after he caused a
disruption in the food line, walked back to his jail cell,
and then refused to comply with defendants' repeated
verbal orders to get on the ground of his cell. See
Dkt. # 39; Dkt. # 74, at 13-14. Because Harper was a pretrial
detainee at the time of the alleged use of excessive force,
the Fourteenth Amendment's due process clause governs his
claim. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473
(2015); Porro v. Barnes, 624 F.3d 1322, 1326 (10th
Cir. 2010). To establish a Fourteenth Amendment violation, a
pretrial detainee must show that “the force purposely
or knowingly used against him was objectively
unreasonable.” Kingsley, 135 S.Ct. at 2473. In
excessive-force cases “objective reasonableness turns
on the ‘facts and circumstances of each particular
case.'” Id. (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). Ultimately, several
factors “bear on the reasonableness or unreasonableness
of the force used, ” including, but not limited to:
“the relationship between the need for the use of force
and the amount of force used; the extent of the
plaintiff's injury; any effort made by the officer to
temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by