Opinion
CIV-17-950-G
04-29-2021
MARCUS THURMAN, Plaintiff, v. COUNTY COMMISSIONERS OF OKLAHOMA COUNTY, et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
The sole remaining claim against Defendant Miller is in his individual capacity and seeks liability based on allegations of excessive force. See ECF Nos. 9 & 15. Defendant Miller has filed a Motion for Summary Judgment on this claim and Plaintiff has filed a response. (ECF Nos. 87 & 103). Having considered the arguments, pleadings, and evidentiary materials, the undersigned recommends that Defendant Miller's Motion be GRANTED.
In his Response, Mr. Thurman refers to Defendant's first Motion for Summary Judgment, ECF No. 74. See ECF No. 103. But in a letter, Plaintiff clarifies that his Response, ECF No. 103, is a response to Defendant's second Motion for Summary Judgment. See ECF No. 105.
I. STANDARD OF REVIEW
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). “An issue is 'genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-MartStores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An issue of fact is 'material' if under the substantive law it is essential to the proper disposition of the claim.” Id.
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 (1986). If the movant carries this initial burden, the nonmovant must then “go beyond the pleadings and 'set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671 (quoting prior version of Fed.R.Civ.P. 56(e)); see also LCvR 56.1(c). The Court must then determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Parties may establish the existence or nonexistence of a material disputed fact by:
• citing to “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” in the record; or
• demonstrating “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). While the Court views the evidence and the inferences drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the [nonmovant].” Liberty Lobby, 477 U.S. at 252.
Where there is video of the events at issue, the Court “will accept the version of the facts portrayed in the video, but only to the extent that it 'blatantly contradict[s]' the plaintiff's version of events.” Emmettv. Armstrong, 973 F.3d 1127, 1131 (10th Cir. 2020) (quoting Scott v. Harris, 550 U.S. 372 (2007)); see Rowell v. Board of County Commissioners of Muskogee County, Oklahoma, 978 F.3d 1165, 1171 (10th Cir. 2020) (“[W]e cannot ignore clear, contrary video evidence in the record depicting the events as they occurred.”) (citation omitted).
II. QUALIFIED IMMUNITY
Defendant Miller argues he is entitled to summary judgment on grounds of qualified immunity. (ECF No. 87:19-21). “Individual defendants named in a § 1983 action may raise a defense of qualified immunity.” Henderson v. Glanz, 813 F.3d 938, 951 (10th Cir. 2015) (quotations omitted). The doctrine of qualified immunity “shields government officials performing discretionary functions from liability if their conduct does not violate clearly established rights of which a reasonable government official would have known.” Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006) (internal quotation marks omitted). “A defendant's motion for summary judgment based on qualified immunity imposes on the plaintiff 'the burden of showing both (1) a violation of a constitutional right; and (2) that the constitutional right was clearly established at the time of the violation.' ” Burke v. Regalado, 935 F.3d 960, 1002 (10th Cir. 2019) (quoting Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877 (10th Cir. 2014)). The court may exercise its “sound discretion in deciding 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).
In determining whether the plaintiff has met his burden, the court views the facts in the light most favorable to the plaintiff as the nonmoving party and "resolve[s] all factual disputes and reasonable inferences” in the plaintiff's favor. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). However, the "plaintiff's version of the facts must find support in the record” if he or she is to defeat a qualified-immunity defense at the summary-judgment stage of litigation. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009); see also Scottv. Harris, 550 U.S. at 380-81. If the plaintiff satisfies this initial burden, the defendant "bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense.” Olsen v. Layton Hills Mail, 312 F.3d 1304, 1312 (10th Cir. 2002).
III. DEFENDANT MILLER IS ENTITLED TO SUMMARY JUDGMENT
The Court should conclude that Defendant Miller is entitled to summary judgment.
A. Excessive Force Under the Fourteenth Amendment
At the time of the alleged incident Mr. Thurman was a pretrial detainee, so the Fourteenth Amendment's Due Process Clause governs his claim of excessive force. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) ("Due process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be 'cruel and unusual' under the Eighth Amendment.”); Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014). In evaluating the Fourteenth Amendment claim, the Court should apply an objective standard, to determine whether the force used was impermissible, which requires that Mr. Thurman “show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-397 (2015). See Rowell v. Board of County Commissioners of Muskogee County, Oklahoma, 978 F.3d 1165, 1172 (10th Cir. 2020) ("A defendant violates the Fourteenth Amendment by purposely or knowingly using force against a pretrial detainee that is 'objectively unreasonable.' ”) (citing Kingsley, 576 U.S. at 396-397).
Objective reasonableness under Kingsley turns on the "facts and circumstances of each particular case.” Id. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396, (1989)). Courts "make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id. The analysis must account for the "legitimate interests that stem from the government's need to manage the facility in which the individual is detained, appropriately deferring to policies and practices that in the judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security.” Id. (brackets and quotations omitted). The objective reasonableness standard "protects an officer who acts in good faith, ” and who is "often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving.” Id. at 399 (quotations omitted).
In Kingsley, the Supreme Court listed non-exclusive factors that may bear on whether an officer's use of force on a pretrial detainee was objectively reasonable:
1. “the relationship between the need for the use of force and the amount of force used;”
2. “the extent of the plaintiff's injury;”
3. “any effort made by the officer to temper or to limit the amount of force;” 4. “the severity of the security problem at issue;”
5. “the threat reasonably perceived by the officer;” and
6. “whether the plaintiff was actively resisting.”Id. at 397.
B. Factual Background
On September 5, 2015, Mr. Thurman was arrested while wearing only his underwear and booked into the Oklahoma County Detention Center (OCDC). (ECF Nos. 30:3; 30-8:8-15, 19, 21, 25-26; 87:7). Upon his arrival at the OCDC, Plaintiff requested an orange jumpsuit, but his request was denied. (ECF Nos. 30:1; 103:2). Prior to booking, Mr. Thurman was placed in a holding cell, but due to a flooding incident in the cell, he and the other detainees in the cell had to be moved to a different cell. (ECF Nos. 30:4; 87:7; 103:4). At this point, Mr. Thurman and Defendant Miller provide differing versions of the events which happened next.
Both parties state that Plaintiff was wearing only his “underwear, ” but in the video surveillance, it appears as though Plaintiff is wearing athletic shorts. See ECF Nos. 36 & 83).
1. Plaintiff's Version
According to Mr. Thurman, during his trip to the other holding cell, while walking down the corridor, he saw Defendant Miller, and asked him for some “oranges” (jail clothing) because he was in his “underwear” and another detainee had made a lewd comment that Plaintiff was “in them drawers showing that print off to the world” and other detainees were laughing. (ECF No. 103:5). Defendant Miller told Plaintiff to “keep moving” and “with his hand, lightly pushed [Plaintiff's] arm.” (ECF No. 103:5). At that point, Plaintiff says he saw another officer escorting a restrained female inmate down the corridor approaching Plaintiff with a view of his front, so he “sat down on the [floor] to prevent [his] private part print through [his] underwear from being seen by that female detainee.” (ECF No. 103:5). According to Plaintiff, “as soon as [he] sat on the floor, D.O. Miller immediately hover[ed] over [him]” and aggressively yelled at Plaintiff, saying “Get your fucking ass up! now!” (ECF No. 103:5). Mr. Thurman states that at that point he asked to speak with a supervisor to get him “some oranges to put on.” (ECF No. 103:5). According to Plaintiff, Defendant Miller said “Get your ass up and a supervisor can talk to you!” (ECF No. 105:5). Plaintiff states he was trying to comply with Defendant Miller's order to stand, and “as [he] began to raise up, the Defendant D.O. Miller immediately put his arms under [Plaintiff's], and lifted [Plaintiff] up, and over backwards, and slammed [Plaintiff] head and neck first on the concrete floor in the corridor, breaking [his] neck and paralyzing [him].” (ECF No. 103:5). Plaintiff then states that Defendant Miller jumped on top of him while he lay motionless, applied restraints, and “approx. 4 other D.O.s in the area at the time pulled Defendant Miller off of [Plaintiff.]” (ECF No. 103:5).
Plaintiff then reiterates that he “did not resist or threaten the Deft. D.O. Miller . . . nor did he break any jail rules . . . by asking for oranges . . . or by sitting non-aggressively on the floor and in complying with Deft. D.O. Miller['s] verbal orders to stand-up.” (ECF No. 103:8).
2. Defendant's Version
According to Defendant Miller, during the trip to the other holding cell, Plaintiff sat down on a bench in the processing area and refused to proceed to the holding cell. (ECF No. 87:8). Defendant Miller then told Plaintiff to proceed to the other cell, but Mr. Thurman refused. (ECF No. 87:8). Defendant Miller states that he then “took Thurman's arm to escort Thurman to the holding cell.” (ECF No. 87:8). Defendant Miller stated that Plaintiff then “jerked away, ” and Defendant Miller “took both [of Plaintiff's] arms to guide Thurman to the holding cell.” (ECF No. 87:8). Defendant Miller states that Plaintiff then “pulled DO Miller off balance starting the struggle.” (ECF No. 87:8). According to Defendant Miller, he “overcame Thurman's resistance and took him to the floor in order to apply restraints.” (ECF No. 87:8-9).
3. The Videotape
Defendant Miller has submitted a videotape of the events which depicts the events in dispute. (ECF Nos. 36 & 83). The videotape contains no audio.
Where there exists video of the events at issue, the Court “will accept the version of the facts portrayed in the video, but only to the extent that it 'blatantly contradict[s]' the plaintiff's version of events.” Emmett v. Armstrong, 973 F.3d at 1131 (10th Cir. 2020); see Rowel v. Board of County Commissioners of Muskogee County, Oklahoma, 978 F.3d at 1171 (“[W]e cannot ignore clear, contrary video evidence in the record depicting the events as they occurred.”) (citation omitted).
Here, the videotape depicts the following:
1. Plaintiff, unrestrained, walked in a line of inmates, down the corridor, wearing only shorts and jail shower slides, with a bandaged left thumb, holding a roll of toilet paper in his right hand, and fist/elbow bumping two other inmates.
2. After greeting the other inmates, Plaintiff sat on a bench in the corridor.
3. After a few seconds, Plaintiff stood up and began speaking and pointing to his shorts.
4. Officer Miller became visible at the bottom of the screen, to Plaintiff's right, from the direction at which Plaintiff had been speaking.
5. While Plaintiff and Defendant Miller continued to converse; a restrained female appeared at the top of the screen being escorted down the corridor, toward Plaintiff, while Plaintiff was still turned away from her.
6. Defendant Miller then approached Plaintiff, placed his left hand, open, around Plaintiff's right arm above the elbow, lightly pushed Plaintiff's right arm with his own right arm, spinning Plaintiff to his left, so that Plaintiff was facing away from Defendant Miller, then hooked his right arm through Plaintiff's right arm, pulling it behind Plaintiff, then hooked his left arm around Plaintiff's left arm and pulled it behind Plaintiff's back. At this time, both men are facing one way, with Plaintiff in front of Defendant Miller, both facing the approaching female inmate.
7. A struggle ensued, and Plaintiff drop-squatted to the ground.
8. After approximately three seconds of struggling, Defendant Miller, with his arms still hooked in Plaintiff's arms, overcame Plaintiff and turned to his right, taking Plaintiff to the floor, face down.
9. At this point, Plaintiff's head/face is out of camera view.
10. After approximately four seconds, Defendant Miller straddles Plaintiff, applies restraints, and then stands up.
11. After approximately 2 minutes, Plaintiff is turned on his back and the handcuffs are removed.
12. After approximately 4 more minutes, Plaintiff is helped up and, aided by officers, leaves the camera view.
13. After approximately one minute, officers dragged Plaintiff back into camera view and placed him on a bench, sitting up.(ECF Nos. 36 & 83).
C. Defendant Miller is Entitled to Summary Judgment
Because Defendant Miller raised the issue of qualified immunity, the burden is on Mr. Thurman to prove, in part, that a constitutional violation had occurred. See supra. Application of the Kingsley factors shows that Defendant Miller's use of force was objectively reasonable under the Fourteenth Amendment, thus no violation occurred, and Defendant Miller is entitled to summary judgment.
1. Relationship between the need for the use of force and the amount of force used
The first Kingsley factor favors Officer Miller. In assessing this factor, the Court should consider how a reasonable officer in Officer Miller's position would have perceived Mr. Thurman's conduct. See Kingsley, 576 U.S. at 397 ('“A court must make [the objective reasonableness] determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time.”).
As depicted by the videotape, Mr. Thurman is seen walking down the corridor, unrestrained, gesturing with his arms, while, according to Plaintiff, repeatedly asking for orange jail clothing. The video blatantly contradicts Plaintiff's version of events-that being that he peacefully sat on the ground in protest of not getting jail clothing until he was yelled at by Defendant Miller and then forcefully removed from the floor and slammed, head-first on the floor. Instead, the video depicts Defendant Miller attempting to turn Plaintiff to the direction the other inmates had walked, and when Mr. Thurman resisted, Defendant Miller grabbed both of Plaintiff's arms. At this point, the two men are struggling and in what appears to be the Plaintiff's attempt to break free of Officer Miller's hold, Plaintiff drop-squats to the floor. At this point, Officer Miller's need for force increased, as Plaintiff's resistance increased. See Nosewicz v. Janosko, 754 Fed.Appx. 725, 734 (10th Cir. 2018) ('“if [the plaintiff-inmate] physically resisted the attempt to move him, [the officer-defendant] could have increased the level of force necessary to gain compliance[.]"). Based on the foregoing, it was objectively reasonable for Officer Miller to take Mr. Thurman to the ground to prevent further struggle. See Estate of Booker v. Gomez, 745 F.3d 405, 424 (10th Cir. 2014) ('“[T]he force was ... proportional to the need presented."); Cabrera v. City of Hobbs, 2021 WL 664046, at *12 (D.N.M. Feb. 19, 2021) ('“grabbing Plaintiff's left arm and wrist, neither of which suffered any injury-was "reasonable and proportionate given [her] resistance.").
Plaintiff argues that "immediately after deploying the physical life and flip maneuver against [him] [Officer Miller] jumped on top of [Plaintiff] and placed restraints on [him] as approx. 4 other D.O.s in the area at the time pulled Defendant Miller off of [him]." (ECF No. 103:5). The videotape blatantly contradicts Plaintiff's allegations, as it shows Defendant Miller straddling Plaintiff to place restraints on him, which took approximately 10 seconds, then getting up and walking away, unassisted. See ECF Nos. 36 & 83.
2. Extent of Plaintiff's injury
The second Kingsley factor weighs in favor of Mr. Thurman. OU Medical physician Dr. Santaram Vallurupalli interpreted Plaintiff's MRI and made the following findings on September 8, 2015:
Severe spinal cord injury and stenosis from C3/4 to C5/6 with cord sginal [sic] change and edema. [R]eports dysthesias in bilateral upper extremities, Numbness and loss of differentiation between light touch and pinch in lower extremities. [W]eak motor function in bilateral upper extremities, left side weaker than right side.
...
He has incomplete spinal cord injury with significant cord edema and T2 signal change from C3-C7. [H]e is stenotic at ¶ 3/4, C4/5 and C5/6. Discussed the CT and MRI findings with the patient. Recommend anterior cervical decompression with discectomy at ¶ 3/4, C4/5, and C5/6.(ECF No. 86-5:14).
3. Effort made to temper or limit the amount of force
The third Kingsley factor has minimal applicability because the incident lasted only a few seconds. See Rowell, 978 F.3d at 1173. To the extent it applies, this factor favors Officer Miller because he began by applying modest force to Plaintiff in an attempt to get Mr. Thurman to walk towards where the other inmates were being held. Even Mr. Thurman states that Officer Miller told him to “Keep moving” while “lightly push[ing] Plaintiff's arm with his hand. See ECF No. 103:5. It was only after Mr. Thurman resisted being turned that Defendant Miller applied more force. Plaintiff's attempt to break free of Officer Miller's hold by dropping to the ground was cause for Officer Miller to increase the amount of force to restrain Plaintiff.
4. The severity of the security problem posed by Plaintiff
This factor weighs in favor of Defendant Miller. As depicted by the video, Plaintiff was unrestrained, in the hallway of the Oklahoma County Detention Center, gesturing with his hands, and by his own self report, demanding jail clothing. Plaintiff was admittedly upset about not being given jail clothing and as a result, was not moving to the holding cell as directed. These facts demonstrate that Plaintiff posed a security threat to himself and other officers and inmates in the vicinity. See Nosewicz v. Janosko, 754 Fed.Appx. at 733 (noting that inmate who was unrestrained, out of his cell, exhibiting a hostile while actively resisting being moved to a different cell posed a security threat).
5. The threat reasonably perceived by the officer
This factor weighs in favor of Officer Miller. Mr. Thurman states that prior to the physical struggle, he was sitting passively on the ground, in a protest of sorts, out of not being provided with jail clothing. These allegations would suggest that Plaintiff posed no threat to Officer Miller, but the videotape blatantly contradicts Plaintiff's allegations, as it shows Mr. Thurman speaking in what appears to be an argumentative manner prior to Officer Miller's attempt to move Plaintiff toward the holding cell. See ECF Nos. 36 & 83. According to Defendant Miller, Plaintiff disobeyed a command to move to the holding cell. (ECF No. 83:8). In analyzing the threat posed to an officer, the Tenth Circuit Court of Appeals has held that an officer “may use increased force when a suspect . . . ignores police commands.” Donahue v. Wihongi, 948 F.3d 1177, 1196 (10th Cir. 2020). Because the videotape blatantly contradicts Plaintiff's versions of events, the Court is left with Defendant's version of the events, contending that Mr. Thurman refused to go to the holding cell when ordered; circumstances which then allowed for some use of force. The threat to Officer Miller increased as the struggle ensued, as evidenced by Plaintiff's attempt to escape Defendant Miller's hold by drop squatting to the floor and escalating the struggle. Plaintiff's action of escalating the struggle posed an increased threat to Officer Miller, who, in a split-second decision took Mr. Thurman to the ground, ending the struggle.
6. Whether Mr. Thurman was actively resisting
This factor weighs in favor of Officer Miller. The videotape depicts Plaintiff actively resisting Officer Miller's attempts to: (1) gain compliance with the order to go to the holding cell, and (2) hold on to Plaintiff once he began struggling and attempting to escape Officer Miller's hold.
7. Balancing the Kingsley factors
On balance, the Court should conclude: (1) the balance of the Kingsley factors weighs in favor of Officer Miller and (2) Officer Miller reasonably applied the amount of force necessary to subdue Plaintiff as the situation escalated. Approximately 20 seconds elapsed from the time Plaintiff stood up from sitting on the bench and began speaking to the time he was restrained on the floor. See ECF Nos. 36 & 83. Considering the threat Plaintiff posed, both to himself and other inmates and officers, and considering that Plaintiff actively ignored Officer Miller's command to proceed to the holding cell and resisted Defendant Miller's attempts to lead Plaintiff to the cell with his arms restrained, Defendant Miller's actions were reasonable. The objective reasonableness standard “protects an officer who acts in good faith, ” and who is “often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving.” Kingsley, 576 U.S. at 399. Because Officer Miller's conduct in the hallway was objectively reasonable, the Court should conclude that he did not commit a constitutional violation and is entitled to summary judgment on grounds of qualified immunity.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should grant Defendant Miller's Motion for Summary Judgment (ECF No. 87).
The parties are hereby advised of their 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 May 17, 2021. 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).
V. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.