Easter v. Oklahoma Department of Wildlife Conservation

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

MARY EASTER, as Special )

Administrator for the Estate )

of Billy Patrick, deceased, )

)

Plaintiff, )

)

v. ) Case No. CIV-16-168-KEW

)

OKLAHOMA DEPARTMENT OF )

WILDLIFE CONSERVATION; and )

JARED CRAMER, in his )

individual capacity, )

)

Defendants. )

OPINION AND ORDER

This matter comes before the Court on Defendant Oklahoma

Department of Wildlife Conservation’s Motion for Summary Judgment

(Docket Entry #121). The procedural and appellate record in this

case requires a preliminary recitation of the events which have

transpired before addressing the facts on summary judgment.

Plaintiff commenced this case on May 6, 2016, alleging

. . . an action for negligence in

violation of the Oklahoma Governmental Tort

Claims Act (“GTCA”) and the deprivation of

rights secured by the Fourth Amendment to the

United States Constitution, actionable

through 42 U.S.C. § 1983 arising from the use

of deadly force by an employee of the Oklahoma

Department of Wildlife Conservation (“ODWC”)

to stop a decedent who was suspected of

committing the misdemeanor crime of fishing

without a license.

At the time he was shot, decedent was

unarmed and did not pose a threat of serious

bodily injury to the ODWC employee or anyone

else. The shooting was objectively

unreasonable under the circumstances, and the

amount of force used was disproportionate the

(sic) any threat of harm, real or perceived.

Complaint, Docket Entry #3, pp. 1-2.

After reciting the factual allegations surrounding the its

claims, Plaintiff Mary Easter, as Special Administrator for the

Estate of Billy Patrick, deceased (the “Estate”) identifies two

bases for recovery: (1) Excessive Force under 42 U.S.C. § 1983;

and (2) Negligence under Okla. Stat. tit. 51 § 151 et seq. The

federal Section 1983 claim is asserted against Defendant Jared

Cramer, in his individual capacity (“Cramer”) while the state

negligence claim is expressly asserted against ODWC which is

alleged to be “statutorily liable for the actions of its employees

taken within the scope of their employment consistent with the

provisions of the GTCA.”

On October 30, 2017, this Court entered an Order denying

Cramer’s and ODWC’s requests for summary judgment and associated

claim for qualified immunity. Specifically, it was determined

that the facts surrounding the incident resulting in the death of

Billy Patrick were in “significant dispute” on the issue of whether

Patrick “pose[d] a significant threat of death or serious physical

injury to [Cramer] or others” to justify Cramer’s use of deadly

force. In the same Order, summary judgment on the negligence

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claim asserted against ODWC was also denied based upon the

perceived dispute in the material facts. See Opinion and Order,

Docket Entry #103, p. 9.

Thereafter, on October 31, 2017, Cramer appealed the denial

of qualified immunity to the Tenth Circuit Court of Appeals. See

Docket Entry #105. The case was stayed pending the determination

on appeal. See Docket Entry #107.

On September 19, 2019, the Tenth Circuit reversed this Court’s

determination and remanded the case for the entry of judgment in

favor of Cramer on qualified immunity. See Docket Entry #113,

#114. In so doing, the Court relied upon the following set of

facts:

On April 26, 2015, at around 8:30 a.m.,

[Billy] Patrick, Carl Locke (“Locke”), and

Lyndi King (“King”) went fishing at a pond in

rural Adair County, Oklahoma. They fished on

the east side of the pond by their vehicle.

Patrick and King moved to the northwest corner

of the pond while Locke remained close to the

vehicle.

Approximately one hour after they

arrived, Oklahoma State Game Warden Cody

Youngblood (“Youngblood”) appeared at the pond

near Patrick and King. Youngblood wrote

Patrick a ticket for fishing without a

license. Afterward, Patrick walked over to

Locke and told him what had happened.

The defendant-appellant Game Warden

Jared Cramer heard on his radio that

Youngblood had contacted at least two

individuals for whom the State of Arkansas had

issued arrest warrants. Cramer did not know

the basis for the warrants. Cramer went to

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Youngblood’s location to assist him because

the radio traffic indicated Youngblood

intended to take the subjects into custody.

As Cramer approached the pond from the

west, he pulled in next to Youngblood on the

passenger side of Youngblood’s truck. After

exiting his vehicle, Cramer asked Youngblood

which individuals had a warrant. Youngblood

identified Patrick, who Cramer noted was

pacing.

After speaking with Youngblood, Cramer

drove to the other side of the pond where

Patrick and Locke were located. When he

arrived, Cramer asked Patrick to put his hands

on the bed of Patrick’s truck and asked

Patrick if he had any weapons. Cramer then

asked Patrick to place his hands behind his

back and point his thumbs up. Immediately

after receiving that instruction, Patrick ran

to Cramer’s right towards the slope down to

the pond. Cramer pursued Patrick and tackled

him. Patrick and Cramer then rolled into the

pond.

As the altercation continued in the pond,

Cramer shot Patrick twice, killing him.

Although some testimony regarding the

altercation in the pond is inconsistent, the

undisputed facts establish that when Cramer

and Patrick landed in the pond, Patrick rested

on top of Cramer and Cramer was under water.

Then as the altercation persisted, Patrick

pushed Cramer under water at least one time.

At some point, Patrick rose up out of the

water, and Cramer shot him. Little—if any—

space separated the two men at the time of the

shooting.

See Docket Entry #113, pp. 2-3.

The Tenth Circuit also noted the following:

In her briefing, Appellee suggests that

Lindi King’s testimony established that

Patrick and Cramer were not near each other at

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the time of the shooting (thus suggesting that

Cramer could not reasonably have believed he

was in danger). At oral argument, however,

Appellee conceded that King did not quantify

the distance between Patrick and Cramer at the

time of the shooting. Indeed, King admitted

that she could not see Patrick at the time of

the shooting and she repeatedly deferred to

Locke—who she described as “the one that saw

more than [her].” Locke testified at his

deposition that Patrick was only inches away

from Cramer when Cramer shot him.

Id. at n.3.

The Tenth Circuit concluded that this set of facts did not

put Cramer on notice that the use of deadly force would result in

the violation of a clearly established right. Id. at p. 12. The

case was remanded for the entry of summary judgment for Cramer on

qualified immunity.

On October 24, 2019, this Court conducted a telephonic

conference with counsel for all litigants upon receiving the Tenth

Circuit’s opinion. In the Opinion and Order denying summary

judgment on the negligence claim asserted against ODWC, this Court

utilized the same set of facts as employed in denying qualified

immunity on the 42 U.S.C. § 1983 excessive force claim. The Tenth

Circuit reviewed this Court’s Opinion and Order on qualified

immunity de novo. Fancher v. Barrientos, 723 F.3d 1191, 1194

(10th Cir. 2013). Easter was required to show that (1) a

reasonable jury could find facts supporting a violation of a

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constitutional right that (2) was clearly established at the time

of the Defendants' conduct. Estate of Booker v. Gomez, 745 F.3d

405, 418 (10th Cir. 2014). In its opinion, the Tenth Circuit had

to conclude that the operative facts viewed most favorable to

Easter were not sufficient to establish a violation of clearly

established law – contrary to this Court’s conclusion that the

facts were in dispute as to whether Cramer’s fear for his life was

objectively reasonable in light of Patrick’s position and Cramer’s

position at the time Cramer shot and killed Patrick. Indeed, as

related herein, the Tenth Circuit specifically found that Locke’s

testimony as to the position of Patrick and Cramer, stating they

were “inches away” from one another, controlled over King’s

testimony that they were far apart. Rather than concluding that

a dispute in the facts precluded a finding that clearly established

law had not been violated, the Tenth Circuit adopted the testimony

of Locke as to their relative positions.1 Consequently, this Court

permitted the filing of a second motion for summary judgment by

1 The Tenth Circuit stated, “The undisputed facts identified by the district

court do not permit an inference that at the time of the shooting Patrick no

longer presented a threat to Cramer, whom he had seconds before pushed under

the water. [In a footnote, citing to difference in testimony between King and

Locke and adopting Locke’s version of the facts as to the proximity of Patrick

to King]. To the contrary, the undisputed record establishes that as he

attempted to evade Cramer, Patrick landed on top of Cramer as they entered the

pond and then shoved Cramer under the water during the course of the altercation.

Thus, although Patrick was unarmed, Cramer remained in a vulnerable position,

and a reasonable officer would have reason to believe that Patrick might use

the water to drown him if the altercation continued.” See Docket Entry #113,

pp. 11-12.

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the remaining Defendant, ODWC because of the Tenth Circuit’s

finding that Locke’s testimony established the positions of the

parties effectively overruled this Court’s finding of disputed

facts on this key factual point. It would create an inconsistency

in judicial findings for the Tenth Circuit to conclude one set of

facts were established by the evidence in a light most favorable

to Easter as the non-moving party while this Court determines that

the facts on a determined point are in dispute. Easter’s statement

that nothing required reconsideration of the first denial of ODWC’s

summary judgment ignores the Tenth Circuit’s express finding that

the undisputed facts established the reasonableness of Cramer’s

conduct. The circumstances have changed such that consideration

of ODWC’s legal arguments on the negligence claim is warranted.

ODWC’s current summary judgment motions asserts that (1)

Easter cannot recover under the Oklahoma Governmental Tort Claims

Act (“OGTCA”) for agency level actions or inactions by the

leadership of the ODWC, including hiring, training, and/or

supervision; and (2) Cramer’s actions were objectively reasonable

and, therefore, ODWC cannot be held liable for Cramer’s negligence

while acting in the course and scope of his employment.

Under Rule 56(c) of the Federal Rules of Civil Procedure,

summary judgment is appropriate "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

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the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as a matter of law." Universal Money Centers v. A.T. & T., 22

F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct.

655, 130 L.Ed.2d 558 (1994). The moving party bears the initial

burden of showing that there is an absence of any issues of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). A genuine issue of

material fact exists when "there is sufficient evidence favoring

the nonmoving party for a jury to return a verdict for that party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505,

2510-11, 91 L.Ed 2d 202 (1986). In determining whether a genuine

issue of a material fact exists, the evidence is to be taken in

the light most favorable to the nonmoving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d

142 (1970). Once the moving party has met its burden, the opposing

party must come forward with specific evidence, not mere

allegations or denials of the pleadings, which demonstrates that

there is a genuine issue for trial. Applied Genetics v. Fist

Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir. 1990); Posey

v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).

ODWC first contends it does not know whether Easter is

bringing her negligence claim against the agency due to actions or

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inactions of the leadership – including the alleged negligent

hiring, training, and/or supervision of Cramer – or whether the

claim is brought due to Cramer’s allegedly negligent actions as an

employee of ODWC in using deadly force on Patrick. Easter does

not shed any light on the precise nature of this claim other than

to, again, assert ODWC should not be permitted to bring another

summary judgment motion on this issue.

This Court looks to the Pretrial Order submitted by the

parties, signed by the Court, and entered of record on October 31,

2017 to ascertain how Easter expressly set out her negligence

claim. In the initial statement, Easter set out that the claims

are for “negligence in violation of the [OGTCA] and deprivation of

rights secured by the Fourth Amendment . . . actionable through 42

U.S.C. § 1983 arising from the use of deadly force by [Cramer], an

employee of the Oklahoma Department of Wildlife Conservation . .

. to stop decedent [Patrick] . . . .” See Docket Entry #106, p.

2 (emphasis added by this Court). Further, the statements of

issues of fact and law in the Pretrial Order do not include any

allegations of negligent hiring, supervision, or training – only

allegations surrounding the reasonableness of Cramer’s use of

deadly force. Id. at pp. 5-6. Generally, “issues not contained

in the resulting pretrial order were not part of the case before

the district court.” Cortez v. Wal-Mart Stores, Inc., 460 F.3d

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1268, 1276–77 (10th Cir. 2006) citing Youren v. Tintic School

District, 343 F.3d 1296, 1304 (10th Cir. 2003) and Wilson v.

Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002)(“[C]laims, issues,

defenses, or theories of damages not included in the pretrial order

are waived....”). As a result, Easter did not preserve any agency

based negligence claims for adjudication in this action.

Even if Easter did preserve such claims in some form or

fashion, the discretionary function exception to the OGTCA would

preclude the assertion of such claims. The OGTCA represents the

exclusive remedy for an injured plaintiff to recover against a

governmental entity in tort. Tuffy's Inc. v. City of Okla. City,

212 P.3d 1158, 1163 (Okla. 2009). The OGTCA recognizes the ability

of the state entity to claim sovereign immunity but sets out the

specific circumstances under which the state waives its immunity

and that of its political subdivisions. Okla. Stat. tit. 51, §

152.1; see also Smith v. City of Stillwater, 328 P.3d 1192, 1198

(Okla. 2014). The OGTCA also sets out a list of activities for

which sovereign immunity is not waived, including the

“[p]erformance of or the failure to exercise or perform any act or

service, which is in the discretion of the state or political

subdivision or its employees.” Okla. Stat. tit. 51 § 155(5). The

Oklahoma Court of Civil Appeals has found that “[i]t is . . .

settled that a [political subdivision’s] hiring, training, and

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supervising decisions are discretionary and therefore [the state]

may not be liable for damages resulting from those decisions.

Jackson v. Oklahoma City Pub. Sch., 333 P.3d 975, 979 (Okla. Ct.

Civ. App. 2014) citing Houston v. Independent School Dist. No. 89

of Oklahoma County, 949 F.Supp.2d 1104, 1109 (W.D.Okla. 2013); 51

O.S.2011 § 155(5).

Further, as our sister court in the Northern District of

Oklahoma has noted “the clear weight of authority supports finding

that hiring, training, supervision, monitoring, and retention are

actions that implicate a political entity's policy and planning

functions and therefore fall under the discretionary function

exemption of § 155(5). See Johnson v. Indep. Sch. Dist. No. 89 of

Okla. Cnty., No. CIV–15–680–D, 2016 WL 1270266, at *8 (W.D. Okla.

Mar. 31, 2016) (negligent supervision); Burris v. Okla. ex rel.

Okla. Dep't of Corrections, No. CIV–13–867–D, 2014 WL 442154, at

*9 (W.D. Okla. Feb. 4, 2014) (negligent hiring, training,

supervision, and retention); Seals v. Jones, No. 12–DV–569–JED–

TLW, 2013 WL 5408004, at *4 (N.D. Okla. Sept. 25, 2013) (negligent

hiring and retention); Houston, 949 F. Supp. 2d at 1109 (negligent

supervision and retention); Fumi v. Bd. of Conty. Comm'rs of Rogers

Cnty., No. 10–CV–769–TCK–PJC, 2011 WL 4608296, at *6 (N.D. Okla.

Oct. 3, 2011) (negligent training and supervision); Burns v.

Holcombe, No. 09–CV–152–JHP, 2010 WL 2756954, at *15 (E.D. Okla.

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July 12, 2010) (negligent hiring, training, and supervision);

Jackson v. Okla. City Pub. Schs., 333 P.3d 975, 979 (Okla. Civ.

App. 2014) (negligent hiring, training, and supervision.”

Langkamp v. Mayes Emergency Servs. Tr. Auth., 2017 WL 875483, at

*4 (N.D. Okla. Mar. 3, 2017), motion for relief from judgment

granted, 2017 WL 1102650 (N.D. Okla. Mar. 23, 2017).

Consequently, Easter is barred from pursuing a claim against ODWC

based in the negligence of the leadership of the entity including

claims for negligent hiring, supervision, and training as exempted

under the OGTCA.

Easter’s remaining avenue for recovery under a negligence

theory is based upon Cramer’s actions as an employee of the ODWC.

As with any negligence action, “[t]he threshold question . . . is

whether the defendant owed a duty of care to the plaintiff.”

Morales v. City of Oklahoma City ex rel. Oklahoma City Police

Dep't, 230 P.3d 869, 878 (Okla. 2010). “A police officer's duty

is very specific: it is to use only such force in making an arrest

as a reasonably prudent police officer would use in light of the

objective circumstances confronting the officer at the time of the

arrest.” Id. at 880.

In its analysis, the Tenth Circuit specifically found that

“even taking the facts in the light most favorable to Plaintiff,

Patrick was on one knee; was only partially turned; and, when

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Cramer shot him, remained in a position to resume what a reasonable

officer could have believed was an attempt to drown Cramer.” The

Court further determined that “although Patrick was unarmed,

Cramer remained in a vulnerable position, and a reasonable officer

would have reason to believe that Patrick might use the water to

drown him if the altercation continued.” These findings leave no

doubt that the Tenth Circuit’s interpretation of the facts were

that the level of deadly force used by Cramer was objectively

reasonable in light of the objective circumstances presented. The

Tenth Circuit considered several of the same factors evaluated by

the Oklahoma Supreme Court in Morales to reach its conclusion of

reasonableness. See Docket Entry #113 at pp. 9-10; Morales, 230

P.3d at 880. Again, an unacceptable inconsistency would result

if this Court were to interpret the facts or reach conclusions

found by the Tenth Circuit – even in an interlocutory appeal.

Because Cramer’s actions were objectively reasonable, he did not

violate the legal duty to Patrick in the use of deadly force.

Easter’s negligence claim must fail.

IT IS THEREFORE ORDERED that Defendant Oklahoma Department of

Wildlife Conservation’s Motion for Summary Judgment (Docket Entry

#121) is hereby GRANTED.

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IT IS SO ORDERED this 24th day of June, 2020.

______________________________

KIMBERLY E. WEST

UNITED STATES MAGISTRATE JUDGE

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