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Brown v. City of Bartlesville

United States District Court, N.D. Oklahoma

July 30, 2018

TRINA BROWN, an individual, Plaintiff,
CITY OF BARTLESVILLE, OKLAHOMA, a municipal corporation, and COREY BOYD, an individual, Defendants.



         This matter comes before the court on the Motion to Dismiss [Doc. No. 16] of defendant City of Bartlesville. For the reasons set forth herein, the motion is granted in part and denied in part.

         I. Allegations of the First Amended Complaint

         The First Amended Complaint (“Amended Complaint”)-the operative pleading in this matter-alleges the following facts.[1] On or around October 26, 2016, City of Bartlesville Police Department officers responded to a domestic disturbance reported at Trina Brown's residence. [Doc. No. 4, ¶ 8]. Upon arriving at Brown's residence, the officers learned that William Cole, Brown's boyfriend, had physically battered Brown in the residence but fled the scene prior to the officers' arrival. [Id. ¶ 9]. When the officers could not locate Cole, the officers left Brown's residence. [Id. ¶ 10]. After the officers departed, Cole returned to Brown's residence. [Id. ¶ 11]. A neighbor observed Cole approaching Brown's residence and contacted the Bartlesville Police Department. [Id.]. Bartlesville police officer Corey Boyd and a second officer, Officer Ward, responded, and secured the perimeter of Brown's residence. [Id. ¶ 12].

         Upon seeing the officers, Brown stepped onto her front porch to make contact with the officers, one of whom had drawn his gun. [Id. ¶ 13]. While Brown stood on the porch, Cole burst through the front door and tackled Brown from behind, causing her to tumble forward into her front yard. [Id.14]. Cole then stood over Brown's body and struck Brown's head and shoulders with his closed fists as she lay on the ground. [Id. ¶ 15]. As Cole struck Brown, Ward deployed his Taser on Cole, but the prongs from the Taser lodged in Cole's jacket and caused no effect. [Id. ¶ 16]. Boyd then moved forward to attempt to push Cole off of Brown but, as Boyd approached, Cole punched Boyd in the face. [Id. ¶ 17]. Boyd then drew and discharged his firearm “in the general direction of Mr. Cole and Ms. Brown.” [Id. ¶ 18]. Tragically, but perhaps foreseeably, one of the bullets fired by Boyd struck Brown in the head behind her left ear, traveling down her neck and across her back before lodging near her lower spine. [Id. ¶ 19].

         Brown alleges that the incident is consistent with a pattern of excessive force, rising to the level of a policy or custom, used by Bartlesville police officers in situations police routinely encounter-specifically domestic violence calls. [Id. ¶¶ 21-22 and 24]. Bartlesville failed to train, re-train, or otherwise address the use of appropriate force. [Id. ¶¶ 23 and 26]. Bartlesville's conduct constitutes a violation of Brown's Fourth Amendment and Fourteenth Amendment constitutional rights to be free from an unreasonable search and seizure and to be free from excessive force. [Id. ¶¶ 27-28].

         Based on these allegations, the Amended Complaint asserts three (3) causes of action against the City of Bartlesville and Boyd: (1) a claim pursuant to 42 U.S.C. § 1983, the federal civil rights statute, based on violation of Brown's constitutional rights under the Fourth and Fourteenth Amendments; (2) negligence in violation of the Oklahoma Governmental Tort Claims Act, 51 Okla. Stat. § 151 et seq. (“OGTCA”); and (3) excessive force pursuant to Okla. Const. art. 2 § 30 and Bosh v. Cherokee County Building Authority, 305 P.3d 994 (Okla. 2013). Bartlesville moves to dismiss the entirety of Brown's claims against it. [Doc. No. 16].

         II. Motion to Dismiss Standard

         In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief can be granted. A complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of the conduct necessary to make out the claim. Id. at 556. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court “must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest Guardians v. Forsgren, 149');">478 F.3d 1149, 1160 (10th Cir. 2007)).

         III. Analysis

         As stated above, Brown asserts three claims against Bartlesville: (1) a section 1983 claim for violation of Brown's Fourth and Fourteenth Amendment rights; (2) an OGTCA negligence claim; and (3) a Bosh claim. The court will separately consider each claim.

         A. Section 1983 Claim

         “In order to state a claim for municipal liability under § 1983 for the actions of one of its employees, a party must allege sufficient facts to demonstrate that it is plausible (1) that a municipal employee committed a constitutional violation; and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation.” Asten v. City of Boulder, 652 F.Supp.2d 1188, 1207 (D. Colo. 2009). As previously stated, Brown premises her section 1983 claim on two alleged constitutional violations: (1) violation of her Fourth Amendment right to be free from unreasonable searches and seizures, as well as excessive force, and (2) violation of her Fourteenth Amendment right to be free from excessive force. The court will consider each alleged violation separately.

         1. Fourth Amendment

         Bartlesville argues Brown fails to allege an unconstitutional seizure as a matter of law and therefore Brown cannot plausibly state a section 1983 claim based on the Fourth Amendment.[2]

         In order to state a plausible Fourth Amendment claim for unlawful seizure or excessive force under the Fourth Amendment, plaintiff must allege a “seizure which invokes the protections of the Fourth Amendment.” Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015); see also Id. at 575 (“Without a seizure, there can be no violation of the Fourth Amendment . . . . Additionally, without a seizure, there can be no claim for excessive use of force in effectuating that seizure.”). It is well-established that an unlawful seizure in “[v]iolation of the Fourth Amendment requires an intentional acquisition of physical control.” Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989).

         “A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful.” Id. (internal citations omitted). Thus,

a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.

Id. at 596-97 (emphasis altered from original).

         Brown urges the court to adopt the “impli[cit]” reasoning of the Third Circuit in Davenport v. Borough of Homestead, 870 F.3d 273 (3d Cir. 2017), and conclude that a Fourth Amendment “seizure” can exist when force is deployed and there is not an immediate danger or threat to the public. However, Davenport did not so hold. Rather, with regard to the “seizure” requirement, the Third Circuit relied on the Supreme Court's decision in Brendlin v. California, 551 U.S. 249 (2007), which held that, “in intentionally stopping a vehicle, an officer subjects not only the driver, but also the vehicle's passengers to a Fourth Amendment seizure.” Davenport, 870 F.3d at 279 (citing Brendlin, 551 U.S. at 254-56). Thus, because Davenport was shot by a police officer to effectuate an end to a vehicular pursuit, a Fourth Amendment “seizure' occurred. Id. Here, Boyd did not shoot Brown during the course of a vehicular stop or pursuit, and Davenport is not persuasive.[3]

         Rather, this court is persuaded that this case is factually analogous to so-called “innocent bystander” cases.

[T]he Fourth Amendment “reasonableness” standard does not apply to section 1983 claims which seek remuneration for physical injuries inadvertently inflicted upon an innocent third party by police officers' use of force while attempting to seize a perpetrator, because the authorities could not ‘seize' any person other than one who was a deliberate object of their exertion of force. Rather, constitutional tort claims asserted by persons collaterally injured by police conduct who were not intended targets of an attempted official “seizure” are adjudged according to substantive due process norms.

Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (internal citations omitted) (emphasis added); see also Clark v. Edmunds,513 F.3d 1219, 1222 (10th Cir. 2008); Childress v. City ofArapaho, 210 F.3d 1154, 1157 (10th Cir. 2000); York v. Julian, No. 97-CV-0651, 2000 WL 33710899, at *4 (D. Utah Aug. 2, 2000) (where plaintiff was not intended target of shots fired, no Fourth Amendment violation). Thus, “[i]t is intervention directed at a specific individual that furnishes the basis for a ...

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