United States District Court, N.D. Oklahoma
DOLLY GONZALES, Individually and as the Personal Representative of the Estate of James Dylan Gonzales Plaintiff,
v.
HERB ADSON; CALVIN BROWN; THE CITY OF PAWNEE; and PAT LEADING FOX, Defendants.
OPINION AND ORDER
JOHN
E. DOWDELL, CHIEF JUDGE
I.
Background
This
action arises as a result of the death of James Dylan
Gonzales, who was shot by defendant Calvin Brown, a Deputy
Police Chief for the City of Pawnee. After 6:00 p.m. on May
1, 2010, Officer Brown responded to a burglary call upon a
report that a witness saw a man carrying property from an
apartment of a resident who was not at home, in the City of
Pawnee.[1] (Doc. 146-1 at 1; 146-2 at 3). The report
identified as a suspect an “Indian male white shirt
blue bandana in maroon GMC.” (Doc. 146-1). Officer
Brown arrived in the area of the report, saw a vehicle
matching that description leaving the apartments and
initiated a stop of the vehicle. Pat Leading Fox, Jr., the
son of defendant Leading Fox, Sr., was driving the vehicle,
and Gonzales was a passenger. Gonzales exited the vehicle and
ran. Officer Brown initially pursued Gonzales, but then lost
sight of him and stopped the chase. Defendant Pat Leading
Fox, Sr., a Pawnee Nation Officer, subsequently arrived at
the scene and was informed by Officer Brown that they should
search the abandoned nursing home nearby. A separate domestic
disturbance call intervened, and Officers Brown and Leading
Fox proceeded to respond to the reported domestic
disturbance. Once they completed that call, they traveled to
the abandoned nursing home.
Leading
Fox and Brown entered the building and split up to
simultaneously search opposite sides of the nursing home.
Brown has provided evidence that he located Gonzales hiding
in a pantry in the kitchen of the nursing home. According to
Brown, Gonzales had his right hand hidden under the lower
front of his shirt and threatened to shoot Brown. Brown
pulled his duty weapon and ordered Gonzales to remove his
hand from under this shirt and lay face down on the floor.
Gonzales then stood up, removed his right hand from under his
shirt, and produced a shiny-looking object. Officer Brown
initially believed it might be a gun, and he again ordered
Gonzales to get down on the ground. Gonzales then advanced
and attacked Brown with the object, cutting Brown's neck
and face. Brown then fired his gun to stop the attack.
Brown's sworn affidavit states that he was the only
officer present when he shot Gonzales, and he maintains that
he acted in self-defense to protect himself from
Gonzales's attack. The Pawnee County Sheriff's Radio
Log Report indicates that a call of shots fired and a request
for emergency medical services was made at 7:07 p.m. (Doc.
146-4 at 1). Mr. Gonzales died at the scene.
Pat
Leading Fox Sr. provided a sworn affidavit that is consistent
with Officer Brown's affidavit. (Doc. 128-1). Leading Fox
stated that he heard radio traffic about a burglary call at
approximately 6:00 p.m. on May 1, 2010 and he subsequently
heard that Brown was stopping a Chevrolet Blazer and was
requested to respond to assist Brown. Leading Fox recognized
the vehicle description and tag number over the radio as the
vehicle driven by his son. Before he arrived, Leading Fox
heard Brown over the radio say that a subject had run from
the vehicle. After Leading Fox arrived, Officer Brown
indicated they should search the nearby abandoned nursing
home. Before they could proceed to the nursing home, they
received another call regarding a domestic disturbance, and
Leading Fox backed Brown on that call. After they completed
that call, they proceeded to the abandoned nursing home.
Deputy Larry Miller and dispatcher Dennis Walker were present
on the outside of the nursing home when Brown and Leading Fox
arrived. Brown instructed Leading Fox to check the rooms on
the east side of the nursing home, while Brown checked the
rooms on the west side of the building. As Leading Fox
searched the reception area, he heard Brown talking to
someone. He could not see what was happening because he was
not in the same area. A second or two later he then heard
approximately three gunshots and began trying to find Brown
by heading toward where he heard the sound of gunshots. When
Leading Fox found Brown in the kitchen, he also recognized
Gonzales and observed that he had an object in his hand.
Leading Fox did not witness Brown's shooting of Gonzales
and had no interaction with Gonzales prior to the shooting.
The
plaintiff has not provided any evidence disputing that
provided by Brown and Leading Fox. Instead, in response to
the defendants' statements of undisputed facts (which is
supported by record evidence), the plaintiff merely lists a
number of issues, without evidentiary substantiation. The
plaintiff's exhibits are actually consistent with Officer
Brown's and Officer Leading Fox's sworn affidavits as
to what immediately preceded the shooting of Mr. Gonzales.
For example, while plaintiff argues that a question exists as
to whether Brown was the only officer who was present and
shot Gonzales, she has provided no evidence to
counter the defendants' evidence that Brown was the only
officer in the room when he shot Gonzales. The exhibits
plaintiff attaches materially support, rather than refute,
the defendant' evidence. (See Doc. 146, 147).
One of plaintiff's exhibits is a statement by Deputy
Larry Miller, in which he indicates that he saw through a
window of the nursing home that Brown entered a room and he
then “heard someone tell [Brown] he was going to kill
him.” (Doc. 146-6). In a statement of defendant Leading
Fox, which was submitted by the plaintiff (Doc. 146-7),
Leading Fox stated that he and Brown entered the abandoned
nursing home building and, as Brown moved into a room on the
west side of the building, Leading Fox went toward the
reception area. Leading Fox then heard shouting followed by
gunshots coming from the area of the room that Brown had
entered. When Leading Fox got to the room, he asked Brown
“if he was OK” and Brown “said no.”
(Id.). Leading Fox stated that Brown had a scratch
on the left side of his cheek, and Leading Fox noticed that
Gonzales “had an object in his right hand, ”
which looked like “some kind of glass object.”
(Id.).
Plaintiff
also provided a statement of another witness, Dennis Walker,
who was a dispatcher and emergency medical technician for the
Pawnee Police Department. Walker was at home when he heard
Brown informing dispatch on his police radio that Brown was
stopping a suspect vehicle on the street near Walker's
home. (See Doc. 146-8). Walker looked out the front
window of his house and saw Officer Brown pulling over a red
vehicle. Walker saw an Indian male, wearing a blue bandana,
white t-shirt, and blue jeans, exit the passenger side of the
vehicle and run from the vehicle. (Id. at 3). Walker
got in his own vehicle and headed to the 800 block of 9th
street to see if he could help locate the man who fled. He
knew that there was an old vacant nursing home at that
location. (Id.). He saw a male at the north end of
the nursing home, but lost sight of him when the male ran
from the north end of the nursing home to the southwest.
(Id. at 4). Walker then radioed Brown about seeing
the male running in the nursing home. When Brown arrived, he
told Walker that Brown and Leading Fox would enter the
building to try to locate Gonzales. (Id.). A short
time later, Walker heard three to five gunshots that sounded
as if they came from inside the nursing home. (Id.).
After
Walker heard the shots, he received a page requesting him to
respond to the nursing home. Walker then entered the building
and walked to an open room located in the middle area of the
nursing home. He observed that Officer Brown was bleeding
from the face and neck and that he had cut injuries to his
right cheek and lower left neck area. (Id. at 4, 6).
Walker saw the man who had been shot lying on his back, and
he saw that the man “had a clear looking object with a
round base gripped in his right hand” and “the
end [of the object] came to a point” and
“appeared to look like a large syringe in the
dark.” (Id. at 5). At 7:07 p.m., Walker
requested that two ambulances be sent to the scene.
(Id. at 1).
Plaintiff,
Dolly Gonzales, who is Mr. Gonzales's mother and the
Personal Representative of his Estate, asserts claims under
42 U.S.C. § 1983, based upon alleged violations of the
Fourth and Fifth Amendments, and a wrongful death claim under
Oklahoma law. The suit was initially brought against numerous
defendants. The Court previously dismissed all claims against
David Kanuho and plaintiff's official capacity claim
against Leading Fox. (Doc. 81). Plaintiff voluntarily
dismissed all claims against Larry Miller and Mike Waters.
(Doc. 113). Now before the Court are motions for summary
judgment filed by the remaining defendants: Herb Adson,
Calvin Brown, and the City of Pawnee (Doc. 127); and Pat
Leading Fox (Doc. 128).
II.
Summary Judgment Standard
Summary
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); see Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “[S]ummary
judgment will not lie if the dispute about a material fact is
‘genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for a nonmoving
party.” Anderson, 477 U.S. at 248. The courts
thus determine “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52. All justifiable
and reasonable inferences from the evidence are to be drawn
in the non-movant's favor. Id. at 255.
III.
Discussion
A.
Plaintiff Concedes Summary Judgment on Multiple
Claims
Plaintiff
“concedes the evidence attached hereto does not support
any personal participation, exercise of control or direction
or a failure to supervise defendants Brown and Leading Fox,
Sr. on May 1, 2010 on the part of Defendant Adson.”
(Doc. 146 at 11). She also admits that she “cannot
argue that any action of Adson can be affirmatively linked to
the deprivation of the constitutional rights of James Dylan
Gonzales.” (Id.). By those admissions, she has
conceded summary judgment is appropriate as to her §
1983 claims against Herb Adson. She also “concedes
summary judgment is appropriate for Defendant City of Pawnee,
Defendant Adson, Individually and Officially, and Defendant
Brown, Officially, ” and she admits that “there
was no notice given in accordance with the Governmental Tort
Claims Act.” (Id. at 15).[2] Accordingly, the
Motion for Summary Judgment (Doc. 127) will be granted as to
plaintiff's claims (1) against Herb Adson, in both his
individual and official capacities, (2) against Calvin Brown
in his official capacity, and (3) against the City of Pawnee
on the OGTCA claim.
B.
Claims Against the Individual Defendants Under §
1983
Plaintiff
asserts that defendants Brown and Leading Fox violated Mr.
Gonzales's constitutional rights by using excessive
force.
1.
Calvin Brown
Officer
Brown asserts that he is entitled to qualified immunity. The
general summary judgment standards apply to motions for
summary judgment based on qualified immunity. Accordingly,
courts must still draw the evidence and reasonable inferences
in favor of the non-moving party. See Tolan v.
Cotton, 572 U.S. 650, 656-60 (2014); Scott v.
Harris, 550 U.S. 372, 377 (2007). In resolving questions
of § 1983 qualified immunity at the summary judgment
stage, courts engage in a two-pronged inquiry. The first
prong “asks whether the facts, ‘[t]aken in the
light most favorable to the party asserting the injury, . . .
show the officer's conduct violated a [federal]
right.'” Tolan, 572 U.S. at 655-56
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001));
see also York v. City of Las Cruces, 523 F.3d 1205,
1209 (10th Cir. 2008). The second prong asks “whether
the federal right was clearly established at the time of the
violation.” Id. at 656 (quoting Hope v.
Pelzer, 536 U.S. 730, 739 (2002)). In this Circuit, once
qualified immunity is raised by a defendant, the burden
shifts to the plaintiff to meet the “heavy two-part
burden.” See Medina v. Cram, 252 F.3d 1124,
1128 (10th Cir. 2001) (quoting Albright v.
Rodriguez, 51 F.3d 1531, 1534 (10th Cir.
1995); see also Cox v. Glanz, 800 F.3d 1231, 1243
(10th Cir. 2015).
Government
officials are shielded from liability if their actions did
not violate clearly established federal rights “of
which a reasonable person would have known.”
Tolan, 572 U.S. at 656 (quoting Hope, 536
U.S. at 739). “Because the focus is on whether the
officer had fair notice that her conduct was unlawful,
reasonableness is judged against the backdrop of the law at
the time of the conduct.” Kisela v. Hughes, __
U.S. __, 138 S.Ct. 1148, 1152 (2018) (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004)). Courts have
discretion to determine “which of the two prongs of the
qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at
hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009).
a.
First Prong: Violation of a Federal Right
Claims
of excessive force in the course of an investigation, arrest,
or other “seizure” of a free citizen are analyzed
under the Fourth Amendment's reasonableness
standard.[3] “When a plaintiff alleges excessive
force during an investigation or arrest, the federal right at
issue is the Fourth Amendment right against unreasonable
seizures.” Tolan, 572 U.S. at 656; Graham
v. Connor, 490 U.S. 386, 394-95 (1989). “The
inquiry into whether this right was violated requires a
balancing of ‘the nature and quality of the intrusion
on the individual's Fourth Amendment interests against
the importance of the governmental interests alleged to
justify the intrusion.'” Tolan, 572 U.S.
at 656 (citing Tennessee v. Garner, 471 U.S. 1, 8
(1985) and Graham, 490 U.S. at 396). Evaluation of
an excessive force claim requires a court to consider whether
the “totality of the circumstances” justified a
particular use of force. See Garner, 471 U.S. at
8-9.
“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,
” and the inquiry “is an objective one: the
question is whether the officers' actions are
‘objectively reasonable' in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.” Graham, 490
U.S. at 396-97 (citations omitted). Determining whether force
was reasonable “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.” Id. at 396.
Taking
the evidence in the light most favorable to the plaintiff,
there are no genuine disputes of material fact that would
preclude summary judgment on plaintiff's § 1983
claims against Brown. The evidence relating to Officer
Brown's use of deadly force is one-sided. Gonzales
matched the description of the man who was seen carrying
property out of an apartment and getting into a specified
vehicle. When Brown stopped the vehicle, Gonzales exited the
vehicle and fled. From the front window of his home, Walker
saw a man, wearing a blue bandana, white t-shirt, and blue
jeans, exit the passenger side of the vehicle and run from
the vehicle. Walker went to the area in his vehicle and
subsequently saw the man run from the north end of the
nursing home to the southwest, and he radioed Brown to inform
him he had seen the man there. After Leading Fox, Sr. arrived
at the scene where Gonzales had fled, Brown informed Leading
Fox that they should go to the abandoned nursing home to look
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