Gonzales v. Adson

          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 (10^th 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 ...