Opinion
CIV-23-157-J
07-19-2024
THOMAS ADKINS, Plaintiff, v. BRYAN LOCKE et al., Defendants.
REPORT AND RECOMMENDATION
SHONT. ERWIN UNITED STATES MAGISTRATE JUDGE.
Plaintiff Thomas Adkins, appearing pro se and in forma pauperis, has filed a Third Amended Complaint (TAC) under 42 U.S.C. § 1983, alleging liability against the three named Defendants in their individual and official capacities. (ECF No. 25). United States District Judge Bernard M. Jones has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C).
The Defendants have filed a Motion for Summary Judgment and Brief in Support regarding the individual capacity claims and Plaintiff has responded. (ECF Nos. 48, 55, & 57). Mr. Adkins has also filed a Motion for Summary Judgment and Defendants have responded. (ECF Nos. 56 & 58). Following a review of both motions, and pursuant to the Court's obligation to screen prisoner complaints under 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B)(ii), the undersigned recommends the Court: (1) dismiss the official capacity claims against Defendants Bryan Locke, Michael Azzam, and Houston Dilbeck (Defendants) for failure to state a claim, (2) grant Defendants' Motion for Summary Judgment on the individual capacity claims, and (3) deny Plaintiff's Motion for Summary Judgment.
I. THIRD AMENDED COMPLAINT
In the TAC Plaintiff sues three Oklahoma City police officers-Defendants Locke, Azzam, and Dilbeck. (ECF No. 25). According to Mr. Adkins, Defendant Locke inflicted excessive force on Plaintiff during an attempted arrest following a traffic stop, while Defendants Azzam and Dilbeck stood by and failed to intervene. (ECF No. 25:4-9).Plaintiff sues all three Defendants in their individual and official capacities and seeks monetary damages. (ECF No. 25:4-5, 7-8).
In the Third Amended Complaint, Mr. Adkins presents three claims, wherein he alleges violations of the Fourth, Eighth, and Fourteenth Amendments, and names all three Defendants as parties to each claim. See ECF No. 25:6, 7, 9. However, in the "supporting facts” section relevant to each claim, Plaintiff specifies that Claim One is directed at Defendant Locke, Claim Two is directed at Defendant Dilbeck, and Claim Three is directed at Defendant Azzam. See ECF No. 25:6-9. Additionally, the Court notes that the excessive force claim set forth in Claim One asserted against Defendant Locke is properly asserted under the Fourth Amendment, with liability on the remaining claims against Defendants Dilbeck and Azzam arising generally under 42 U.S.C. § 1983. See Por v. Barne., 624 F.3d 1322, 1325-26 (10th Cir. 2010) (explaining that force used "leading up to and including an arrest” implicates the Fourth Amendment's prohibition against unreasonable seizures[.]”); Mick v. Brewe,, 76 F.3d 1127, 1136 (10th Cir. 1996) ("[A] law enforcement official who fails to intervene to prevent another law enforcement official's use of excessive force may be liable under § 1983.”).
II. SCREENING
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss the complaint, or any portion of the complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B).
III. THE OFFICIAL CAPACITY CLAIMS
Pursuant to the Court's screening obligation, the undersigned recommends dismissal of the official capacity claims against all three Defendants.
When a plaintiff asserts an official-capacity claim against a city official or employee, the plaintiff essentially seeks to hold the city liable for the alleged constitutional violation under a theory of municipal liability. Porro v. Barne., 624 F.3d 1322, 1328 (10th Cir. 2010). But a municipality “may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of Cty. Comm's of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997). Rather, a municipality “can be liable under § 1983 only where its policies are the 'moving force [behind] the constitutional violation.' ” City of Canton v. Harri, 489 U.S. 378, 389 (1989) (alteration in original) (quoting Pok Cty. v. Doo'son, 454 U.S. 312, 326 (1981)). Thus, to state a plausible claim against a municipality, a plaintiff must allege facts demonstrating either “that the unconstitutional actions of an employee [1] were representative of an official policy or custom of the [municipality], or [2] were carried out by an official with final policy making authority with respect to the challenged action.” Seamons v. Snon, 206 F.3d 1021, 1029 (10th Cir. 2000).
Here, Mr. Adkins has failed to allege that any of the Defendants had acted pursuant to a policy which was the moving force behind the alleged constitutional violations. As a result, the Court should dismiss the official capacity claims against the Defendants, without prejudice.
IV. INDIVIDUAL CAPACITY CLAIMS
What remains are the individual capacity claims against the Defendants. The Defendants have moved for summary judgment on the individual capacity claims, seeking qualified immunity. (ECF No. 48). The Court should grant Defendants' Motion and conclude that each Defendant is entitled to qualified immunity on the remaining individual capacity claims.
A. Standard of Review for a Motion for Summary Judgment
Summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim. The Court must grant summary judgment when “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). When considering a motion for summary judgment, the Court views the evidence and the inferences drawn from the record in the light most favorable to the non-moving party. Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir.2005). While the Court construes a pro se litigant's pleadings liberally, such a litigant nevertheless is held to the same rules of procedure as are binding on other litigants. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).
A party that moves for summary judgment has the burden of showing that the undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If this burden is met, the non-movant must come forward with specific facts, supported by admissible evidence, which demonstrate the presence of a genuine issue for trial. Comm. for First Amendment v. Campbel, 962 F.2d 1517, 1526 n.11 (10th Cir. 1992). Although all facts are construed in favor of the non-movant, he still has a responsibility to “go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [his] case in order to survive summary judgment.” Johnson v. MuHin, 422 F.3d 1184, 1187 (10th Cir. 2005) (alteration in original) (internal quotation marks omitted). A pro se non-movant must “identify specific facts that show the existence of a genuine issue of material fact.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000) (internal quotation marks omitted). Conclusory allegations are insufficient to establish an issue of fact that would defeat the motion. Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1180 (10th Cir. 2013).
Parties may establish the existence or nonexistence of a material disputed fact through:
• citation to “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials” in the record; or
• demonstration “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”Fed. R. Civ. P. 56(c)(1)(A)-(B).
And while the court liberally construes a pro se plaintiff's complaint, that plaintiff must adhere to the same rules of procedure that are binding on all litigants. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.2007). Thus, strict adherence by a pro se plaintiff to the requirements of Fed.R.Civ.P. 56 is required. With respect to those requirements, the Supreme Court instructs that the plain language of Rule 56 . . . mandates the entry of summary judgment, 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. v. Catrett, 477 U.S. 317, 322-23 (1986). In such a situation, there can be "no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id.
B. Qualified Immunity
Qualified immunity protects government officials from civil liability so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine protects "all but the plainly incompetent or those who knowingly violate the law.” Mailey v. Brigg., 475 U.S. 335, 341 (1986). Qualified immunity only applies to claims seeking individual capacity liability for civil damages. Harlow v. Fitzgeral, 457 U.S. 800, 818 (1982).
When a defendant asserts qualified immunity at the summary judgment stage, the plaintiff must establish that the defendant violated a constitutional right and that the right was clearly established at the time of the constitutional violation. Thomson v. Salt Lake Count, 584 F.3d 1304, 1312 (10th Cir. 2009); see also Cox v. Glan, 800 F.3d 1231, 1245 (10th Cir. 2015) ("[B]y asserting the qualified-immunity defense, Sheriff [ ] triggered a well-settled twofold burden that [plaintiff] was compelled to shoulder: not only did she need to rebut the Sheriff's no-constitutional-violation arguments, but she also had to demonstrate that any constitutional violation was grounded in then-extant clearly established law.”). The court can exercise its discretion to decide which prong to address first, considering the particular facts and circumstances of the case. Pearson, 555 U.S. at 236. The court must grant the defendant qualified immunity if the plaintiff fails to prove either prong. Holland ex rel. Overdortf v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001).
C. Undisputed Material Facts
The determination of whether a motion for summary judgment is to be granted is based upon whether there are any material issues of fact which are undisputed and entitle the moving party to judgment as a matter of law. See supra. The Court finds the following material facts to be undisputed:
1. On February 6, 2023, at approximately 4:32 p.m., Defendant Locke observed a vehicle with two males inside-a driver and passenger-change lanes without signaling. In response, Defendant Locke turned on his lights and sirens, and conducted a traffic stop at S.W. 42nd Street and S. May Avenue in Oklahoma City. See ECF Nos. 48-1 & 48-2.
2. Defendant Locke asked the driver for his identification and he provided an Oklahoma driver's license with the name Francis Bell. See ECF Nos. 48-1 & 48-2.
3. Defendant Locke checked the driver's license provided by the driver through OLETS (Oklahoma Law Enforcement Telecommunications System), which showed Francis Bell as deceased. See ECF Nos. 48-1, 48-2, 48-3.
4. Defendant Locke checked the information given by the passenger and learned that he had a felony warrant from Cleveland County. See ECF Nos. 48-1 & 48-2.
5. Defendant Locke contacted Defendant Azzam and requested assistance at the traffic stop. See ECF Nos. 48-1, 48-2, 48-4, 48-5.
6. Defendant Locke asked the driver again for his real name, but the driver continued to state his name was Francis Bell. See ECF Nos. 48-1 & 48-2, 48-6.
7. Defendant Locke conducted a pat search of the driver for weapons identification. See ECF Nos. 48-1, 48-2, 48-4, 48-5, 48-6.
8. During the search, Defendant Locke located the driver's wallet, which contained an Oklahoma Identification Card with the name Thomas Henry Woodward Adkins. See ECF Nos. 48-1, 48-2, 48-6.
9. Upon learning that Mr. Adkins had initially provided Defendant Locke with a false identification, Defendant Locke informed Plaintiff that such action was an arrestable offense and that he would be placed under arrest. See ECF No. 48-6.
10. Upon hearing that he would be arrested, Mr. Adkins turned and attempted to flee the scene, at which point Defendant Locke grabbed Plaintiff's shoulder and took him to the ground. Mr. Adkins hit his head and appeared to be temporarily unconscious. See ECF No. 48-1, 48-2, 48-4, 48-5, 48-6.
11. Defendant Locke and Defendant Azzam put handcuffs on Mr. Adkins and transported him to the Oklahoma County Jail. See ECF No. 48-1, 48-2, 484, 48-5, 48-6.
12. Mr. Adkins was ultimately charged with and pled guilty to two felonies- false personation of another under 21 O.S. § 1531 and unlawful use of license or identification card to commit fraud or mislead police under 47 O.S. § 6-301.2(e). See ECF No. 48-10.
13. Defendant Dilbeck was not present when Defendants Locke and Azzam arrested Mr. Adkins. See ECF No. 48-8.
In response to the Motion for Summary Judgment, Mr. Adkins states that he “Never resisted arrest. Because [he] was never put under arrest or Told To put [his] hands behind [his] Back Because [he] was going To be arrested.” (ECF No. 55-1). The body camera evidence, however, provides indisputable proof otherwise. See ECF No. 48-6.
D. Defendant Locke
Mr. Adkins alleges that Officer Locke violated the Fourth Amendment's prohibition on excessive force. See ECF No. 25:6-7; U.S. Const. Amend. IV, see supra, note 1. Specifically, Plaintiff alleges that Defendant Locke “Brutally Beat [him] unconscious, Broke [his] tooth, Blacked Both eyes, [and] damaged [his] left eye,” resulting in a swollen head. (ECF No. 25:7).
When a plaintiff claims that officers used unreasonable force during a seizure, the Court applies the Fourth Amendment's objective reasonableness standard. Graham v. Conno, 490 U.S. 386, 388 (1989). To determine whether the use of force was reasonable, the Court must consider the totality of the circumstances from the perspective of a reasonable officer on the scene. Estate of Larsen exrel. Sturdivan v. Mur, 511 F.3d 1255, 1259 (10th Cir. 2008). The reasonableness calculation must embody the reality that officers are forced to make “split-second judgments,” rather than “with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396-97 . The Graham Court identified three factors to determine whether a use of force is reasonable: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officer or others,” and (3) “whether the individual is actively resisting arrest or attempting to evade arrest by flight.” Id. In the end, the reasonableness inquiry "is always whether, from the perspective of a reasonable officer on the scene, the totality of the circumstances justified the use of force.” Larsen, 511 F.3d at 1260.
Because Defendant Locke has asserted qualified immunity to Plaintiff's claim, the Court must determine whether Officer Locke used reasonable force in his interaction with Mr. Adkins. In doing so, the undersigned evaluates the three Graham factors to determine whether Officer Locke used reasonable force in arresting Mr. Adkins. See Graham, 490 U.S. at 396. The three Graham factors must be considered "at the precise moment that the officer used force.” See Estate of Ronquilo by & through Estate of Sanchez v. City & Cty. of Denve, 720 Fed.Appx. 434, 438 (10th Cir. 2017) (citing Thomas v. Durastant, 607 F.3d 655, 664 (10th Cir. 2010) (“We must consider whether Agent Durastanti could have reasonably perceived he was in danger at the precise moment that he used force....”)).
When assessing the severity of the crime under Graham, Courts weigh two major factors. First, the felony or misdemeanor status of the crime is an essential consideration. Estate of Valverde by and through Padila v. Dodg~, 967 F.3d 1049, 1061 (10th Cir. 2020) (noting that felonies are “a serious crime” for purposes of the first Graham factor); Casey v. City of Fed. Height, 509 F.3d 1278, 1281 (10th Cir. 2007). Second, whether the crime at issue is accompanied by violence is an important consideration. Estate of Ronquil, 720 Fed.Appx. at 438. Here, Mr. Adkins was ultimately charged with and plead guilty to two felonies-false personation of another under 21 O.S. §1531 and unlawful use of license or identification card to commit fraud or mislead police under 47 O.S. §6-301.2(e). See supra. "Felonies are deemed more severe” when considering the severity of the crime in a Graham analysis. See Hayenga v. Garth, No. 18-cv-02038-KLM, 2020 WL 6204276, at *8 (D. Colo. Oct. 21, 2020). And although these crimes would be considered nonviolent, the fact that Mr. Adkins was impersonating a deceased individual to law enforcement officers could have indicated to officers that he was trying to conceal his identity for purposes of evading arrest on other, potentially more serious charges. The Court should find that these factors weigh in favor of Defendant Locke.
When evaluating the second Graham factor, whether Plaintiff posed an immediate threat to the safety of the officers, the Court "must look at whether the officers [or others] were in danger at the precise moment that they used force.” Emmett v. Armstrong, 973 F.3d 1127, 1136 (10th Cir. 2020). The Court should conclude that this factor favors Plaintiff. Before the arrest, the body camera evidence shows Mr. Adkins presenting to the officers in a calm, non-threatening manner. See ECF No. 48-6. And at the time of the “force,” Plaintiff presented no immediate threat to Officer Locke, but was running away from him.
As to the third Graham factor, the Court must evaluate whether the suspect “attempted] to flee or actively resist[ed] the arrest.” Harte v. Bd. of Comm'rs of Cnty. of Johnson, Kan., 864 F.3d 1154, 1191 (10th Cir. 2017). Mr. Adkins' resistance to arrest is conclusively established by the body camera evidence showing him turning from Officer Locke and attempting to flee once Defendant Locke informed Plaintiff that he was under arrest. See ECF No. 48-6. In these circumstances, "there is no doubt th[at] officers [are] justified in employing some force against” the plaintiff. Hooks v. Atok, 983 F.3d 1193, 1200 (10th Cir. 2020). Accordingly, although the Court should conclude that this factor weighs in favor of Defendant Locke reasonably using some force against Mr. Adkins to overcome his resistance, his use of force had to be proportionate. See Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016) (noting "the relevant inquiry is whether the [use of force] was reasonable and proportionate given [the arrestee's] resistance”). Here, in an attempt to stop Plaintiff from fleeing, Officer Locke grabbed Plaintiff by the shoulder and took him to the ground. See ECF No. 48-6. Unfortunately, Plaintiff hit his head on the concrete and momentarily lost consciousness. See ECF No. 48-6. However, based on the videotaped evidence, the Court should: (1) conclude that Defendant Locke employed a use of force proportionate to overcome Plaintiff's attempt to flee the scene and avoid arrest and (2) find that this factor weighs in favor of Defendant Locke.
In sum, based on the totality of the circumstances from the perspective of a reasonable officer on the scene, the Court should find that Defendant Locke employed a reasonable amount of force against Mr. Adkins during the arrest, which did not violate the Fourth Amendment. Because Mr. Adkins has failed to establish that Defendant Locke violated a constitutional right, the Court should find that Defendant Locke is entitled to qualified immunity. See Medina v. Cram, 252 F.3d 1124, 1136 (10th Cir. 2001) ("[I]n excessive force claims asserted under the Fourth Amendment, the qualified immunity question is usually answered in the Fourth Amendment inquiry. This is because, in the excessive force context, the Fourth Amendment inquiry asks directly whether the police officer reasonably could have believed that the force was necessary under the circumstances.”).
E. Defendants Azzam and Dilbeck
Mr. Adkins alleges that Defendant Azzam “stood by and watched cruel and unusual punishment used against [him.]” and Defendant Dilbeck “grabed [sic] [his] wallet, then watched Brayn Locke beat [him] unconscious and did not stop it.” (ECF No. 25:8). The Court should find that both Defendants are entitled to qualified immunity on these claims based on the lack of an underlying Fourth Amendment violation committed by Defendant Locke. See Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015) ("Without either an unlawful seizure or an excessive use of force, Plaintiffs' claim that the nine individual Defendants are liable for a failure to intervene in the violation of constitutional rights also fails."); Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005) ("[i]n order for there to be a failure to intervene, it logically follows that there must exist an underlying constitutional violation[.]").
F. Summary
The Court should conclude that Defendant Locke used reasonable force against Mr. Adkins in arresting him; force that did not violate the Fourth Amendment. And the absence of a Fourth Amendment violation prevents this Court from finding that Defendants Azzam and Dilbeck are liable under a theory of failing to intervene. For these reasons, and based on the undisputed facts shown by the record, the Court should conclude that all three Defendants are entitled to qualified immunity.
G. Plaintiff's Motion for Summary Judgment
Mr. Adkins has filed a Motion for Summary Judgment, essentially repeating his allegations as set forth in his response to Defendants' Motion for Summary Judgment. See ECF No. 56. In his Motion, Plaintiff asserts that after Defendant Locke took Plaintiff's wallet, he “went to grab it back, And Bryan Locke used excessive force, Took [him] To The parking lot Face Frist [sic]." (ECF No. 56:1). According to Plaintiff, “[his] rights were violated" by Defendant Locke's actions. (ECF No. 56:1). Mr. Adkins presents no other evidence to support his claims. But based on the undisputed facts and the prior findings that Defendant Locke did not use excessive force against Plaintiff, the Court should deny Plaintiff's Motion for Summary Judgment.
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the forgoing, the Court should: (1) dismiss the official capacity claims against all three Defendants on screening, (2) grant Defendants' Motion for Summary Judgment on the individual capacity claims, and (3) deny Plaintiff's Motion for Summary Judgment.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by August 5, 2024. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues currently referred to the undersigned magistrate judge in the captioned matter.