Lakey v. Taylor

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

CYNTHIA LAKEY and DOUGLAS

LAKEY, as co-Special Administrators for the

Estate of Jared Lakey,

Plaintiffs,

v. Case No. CIV-20-152-RAW

1. CITY OF WILSON,

2. JOSHUA TAYLOR, in his official and

individual capacities,

3. BRANDON DINGMAN, in his individual

capacity,

4. CHRIS BRYANT, in his official and

individual capacities as Sheriff of Carter

County,

5. DAVID DUGGAN, in his individual

capacity,

6. LONE GROVE,

7. TERRY MILLER, in his individual

capacity, and

8. KEVIN COOLEY, in his official and

individual capacities,

Defendants.

ORDER

Plaintiffs filed their 48-page, 410-paragraph Third Amended Complaint on March 30,

2021, alleging that starting just before midnight on July 4, 2019 and continuing into the early

morning hours of July 5, 2019, Defendants used excessive force against Jared Lakey, resulting in

his death [Docket No. 87]. Plaintiffs bring claims against: (1) the City of Wilson; (2) Joshua

Taylor, the City of Wilson’s “acting police chief” on July 4-5, 2019; (3) Brandon Dingman, a

City of Wilson reserve police officer; (4) Chris Bryant, the Carter County Sheriff; (5) David

Duggan, a Carter County deputy; (6) the City of Lone Grove; (7) Terry Miller, a Lone Grove

police officer; and (8) Kevin Coley,1 the City of Wilson Police Chief.

Plaintiffs allege, inter alia, that Taylor and Dingman deployed their TASERs on Jared

fifty-three times for a total of nearly four minutes, that Duggan placed Jared in a carotid

chokehold for more than forty seconds while Miller stood on Jared’s legs, that Dingman held

Jared down in a jackknife position for nearly three minutes, that Miller then held Jared down in a

jackknife position for over two and a half more minutes, that the officers waited almost four

minutes to start CPR after it was announced that Jared was not breathing, and that Taylor and

Dingman lied to medical providers about the sequence and number of TASER exposures Jared

had endured. During all of this, Plaintiffs allege that Jared never resisted, threatened, fought, or

attempted to flee, and that he was not suspected of committing any violent crime.

Plaintiffs bring the following claims pursuant to 42 U.S.C. § 1983:

• First Claim – Fourth Amendment municipal policy or practice of excessive force claims

against the City of Wilson, Lone Grove, and Carter County Sheriff Bryant in his official

capacity;

• Second Claim – Fourth Amendment excessive force claims against Taylor, Dingman,

Duggan, and Miller in their individual capacities;

• Third Claim – Fourteenth Amendment civil conspiracy claims against the City of

Wilson, Taylor in his official and individual capacities, and Dingman;

• Fourth Claim – Fourth Amendment failure to train claims against the City of Wilson,

Taylor in his official capacity, Lone Grove, Carter County Sheriff Bryant in his official

capacity;

• Fifth Claim – Fourth Amendment municipal claims against Taylor, and alternatively

Coley, as the authorized decisionmaker for the City of Wilson;

• Sixth Claim – Fourth Amendment entity liability for excessive force claims against

Carter County Sheriff Bryant in his official capacity and Taylor in his official capacity, as

the final policymaker for the City of Wilson;

• Seventh Claim – Fourth Amendment supervisory liability claims against Carter County

Sheriff Bryant in his individual capacity, and Coley, as the final policymaker for the City

of Wilson;

• Tenth Claim – Fourth/Fourteenth Amendment failure to intervene claims against the City

of Wilson, Taylor in his official and individual capacities, Dingman, and Miller;

1 Plaintiffs misspelled Kevin Coley’s name in the caption of the Third Amended Complaint.

• Eleventh Claim – Fourteenth Amendment deliberate indifference claims against

Dingman and Miller.

Plaintiffs also bring the following state law claims pursuant to the Oklahoma

Governmental Tort Claims Act, 51 OKLA. STAT. §§ 151, et seq. (“GTCA”) against the City of

Wilson and Carter County Sheriff Bryant in his official capacity: (Eighth Claim) municipal

liability for negligent performance of a law enforcement action; and (Ninth Claim) municipal

liability for statutory excessive force pursuant to 22 OKLA. STAT. § 34.1(B).

Now before the court are the motion for partial dismissal filed by Chris Bryant in his

official capacity [Docket No. 97], the motion to dismiss filed by Lone Grove and Terry Miller

[Docket No. 98], the motion to dismiss filed by Kevin Coley in his individual capacity [Docket

No. 101], and the motion for the dismissal of certain claims filed by the City of Wilson and

Kevin Coley in his official capacity [Docket No. 102]. All four motions are filed pursuant to

Federal Rule of Civil Procedure 12(b)(6).

I. Failure to State a Claim

For purposes of the motion to dismiss, the court accepts as true all well-pleaded facts in

the Third Amended Complaint and construes those facts in the light most favorable to Plaintiffs.

Western Watersheds Project v. Michael, 869 F.3d 1189, 1193 (10th Cir. 2017). Of course, the

court does not accept as true conclusory statements or legal conclusions. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

To survive the motion to dismiss, the Third Amended Complaint “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plaintiffs must nudge their “claims across the

line from conceivable to plausible.” Twombly, 550 U.S. at 570. The well-pleaded facts must

“permit the court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.

The Tenth Circuit has held that the “Twombly/Iqbal standard is a middle ground between

heightened fact pleading, which is expressly rejected, and allowing complaints that are no more

than labels and conclusions or a formulaic recitation of the elements of a cause of action, which

the Court stated will not do.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)

(citing Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “In other words, Rule

8(a)(2) still lives.” Id. (emphasis added). “Under Rule 8, specific facts are not necessary; the

statement need only give the defendant fair notice of what the claim is and the grounds upon

which it rests.” Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235-36 (10th

Cir. 2013) (quoting Khalik, 671 F.3d at 1191) (emphasis added).

In a case against multiple defendants, “it is particularly important . . . that the complaint

make clear exactly who is alleged to have done what to whom, to provide each individual with

fair notice as to the basis of the claims against him or her, as distinguished from collective

allegations . . . .” Robbins, 519 F.3d at 1250 (emphasis in original). Otherwise, the complaint

would fail to provide fair notice and to present a plausible right to relief.

A. Carter County Sheriff Bryant

Defendant Bryant moves for partial dismissal of the claims against him. Bryant seeks

dismissal of the § 1983 claims against him in his official capacity listed in Plaintiff’s fourth and

sixth claims – failure to train regarding the use of a carotid chokehold and entity liability for the

use of excessive force in the use of the carotid chokehold. Bryant argues that Plaintiffs have

failed to state a claim for relief under a theory of ratification. Plaintiffs argue, and the court

agrees, that they sufficiently pled that Bryant ratified Duggan’s actions post-incident as being

consistent with existing Carter County policy or practice.

The Tenth Circuit has held:

A municipal policy or custom may take the form of (1) “a formal regulation or policy

statement”; (2) an informal custom “amoun[ting] to ‘a widespread practice that, although

not authorized by written law or express municipal policy, is so permanent and well

settled as to constitute a custom or usage with the force of law’ ”; (3) “the decisions of

employees with final policymaking authority”; (4) “the ratification by such final

policymakers of the decisions—and the basis for them—of subordinates to whom

authority was delegated subject to these policymakers' review and approval”; or (5) the

“failure to adequately train or supervise employees, so long as that failure results from

‘deliberate indifference’ to the injuries that may be caused.”

Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010). “[A] municipality will not

be found liable under a ratification theory unless a final decisionmaker ratifies an employee's

specific unconstitutional actions, as well as the basis for these actions.” Id. at 790. Plaintiffs

have sufficiently pled that Bryant ratified Duggan’s specific unconstitutional actions as well as

the basis for those actions. See Docket No. 87 at 25, 40, and 43.

Moreover, in both their fourth and sixth claims for relief, Plaintiffs allege that “Bryant, in

his official capacity, adopted, ratified, maintained, and enforced an official policy or practice of

Carter County authorizing Duggan to use a chokehold where the totality of the circumstances did

not warrant that level of force.” Docket No. 87, at 40 and 43 (emphasis added). The court will

not parse out and dismiss different theories of each claim at this stage. Plaintiffs have

sufficiently pled these claims. The motion is denied.

Bryant also seeks dismissal of the state law claim against him in his official capacity

listed in Plaintiff’s ninth claim – “statutory excessive force” pursuant to 22 OKLA. STAT. §

34.1(B). He correctly argues that this is a criminal statute which confers no private right of

action to a civil litigant. Plaintiffs argue that they have not brought a claim pursuant to 22 OKLA.

STAT. § 34.1(B), but that they cited that statute because it defines “excessive force.” Plaintiffs

state that this “statutory excessive force” claim is brought pursuant to Title 51. Plaintiffs do not,

as Bryant argues, however, cite to any legal authority indicating that Oklahoma recognizes a

“statutory excessive force” claim independent of the tort cause of action discussed in Morales v.

City of Oklahoma City, 230 P.3d 869 (Okla. 2010). Plaintiffs point to authority wherein courts

have cited the statutory definition of “excessive force” when analyzing state law negligence

claims in Oklahoma, but that does not support the proposition that Oklahoma recognizes a

“statutory excessive force” claim. The motion is granted as to this claim.

B. City of Lone Grove & Terry Miller

Miller is named only in Plaintiffs’ second, tenth, and eleventh claims – excessive force,

failure to intervene, and deliberate indifference, respectively. Lone Grove is named only in

Plaintiffs’ first and fourth claims – municipal policy of excessive force and failure to train,

respectively.

On page six of their motion to dismiss, Lone Grove and Miller cherry pick allegations

from the 410-paragraph Third Amended Complaint, and argue that Plaintiffs have failed to state

a claim against them for delay in rendering medical care, for deliberate indifference or for the

associated failure to train because Miller was not ignoring Jared’s condition, but was monitoring

him and concerned with whether he was breathing. Defendants argue that Miller stayed with

Jared and that even though he was not required by law to do so,2 Miller eventually even

performed CPR (albeit nearly four minutes after Miller himself announced that Jared was not

breathing), and that Miller did not impede medical assistance once it arrived. Citing Burke v.

Regalado, 935 F.3d 960 (2019), Defendants note that a claim for deliberate indifference requires

failure to provide any timely diagnosis or medical care.

2 Defendants are incorrect in their argument that Miller absolutely had no duty to administer

CPR and could not be found liable for failure to provide CPR. See Estate of Booker v. Gomez,

745 F.3d 405, at 431-34 (10th Cir. 2014).

Allegations that Lone Grove and Miller fail to list include the following: Miller watched

and stood on Jared’s legs as Duggan applied the carotid chokehold; that once Jared was

handcuffed and placed in a seated position, his labored breathing was obvious to Miller and yet

Miller put his hands on Jared’s back and shoulders to force him forward into a jackknife position;

that as Jared struggled to breathe, Miller applied more force to his back, pushing him into a

jackknife position; that Miller prevented Jared from breathing by pushing him into this jackknife

position; and that every time Jared attempted to straighten his body and move his head back so

he could breathe, Miller forced him forward, preventing him from breathing. Docket No. 87, at

4-5, 23, 26-28. The court could continue, but these allegations are sufficient to state a claim for

deliberate indifference. Plaintiffs have alleged that Miller saw that Jared was having difficulty

breathing, and rather than rendering or calling for assistance for Jared, Miller intentionally made

it even more difficult for him to breathe. This is sufficient to survive a motion to dismiss, and

Defendant’s arguments about Miller’s intentions would be more appropriate at the summary

judgment stage.

In arguing that Plaintiffs have failed to state a claim for excessive force and the related

claims against Lone Grove, Defendants acknowledge the allegations listed by the court above.

Defendants argue, however, that Plaintiffs do not have any statement by Jared, and that thus

these allegations are conclusory and speculative. The court does not agree. This is an argument

of proof, better made at the summary judgment stage. The court is also unconvinced by

Defendant’s recharacterization of Plaintiff’s allegation that Miller pushed Jared into a jackknife

position, preventing him from breathing, as merely “placing a hand on Jared’s back” and

argument that “the hand placement can be completely innocent, or, in fact, a helpful gesture.”

Docket Nos. 98, at 13 and 129, at 4.

Defendants further argue that Miller was not provided accurate information about the

number of TASERs deployed prior to his arrival and that he may not have been present for the

entire carotid chokehold by Duggan. Even if so, the allegations against Miller are sufficient to

state a claim for excessive force. Finally, Lone Grove argues that Plaintiffs have failed to state a

claim against it for a municipal policy of excessive force or for failure to train. The court

disagrees. See Docket No. 87, at 34-35, 37, and 40. The motion to dismiss filed by Lone Grove

and Miller is denied.

C. Kevin Coley, in his individual capacity

Kevin Coley, the City of Wilson’s Police Chief is named in his individual capacity in

Plaintiffs’ seventh claim for relief – supervisory liability as the final policy maker for the City of

Wilson. Coley moves for dismissal of this claim, arguing that Plaintiffs have not plausibly

alleged that he personally participated in a violation of Lakey’s constitutional rights, that his own

conduct caused the violation of Lakey’s constitutional rights, or that he was aware of a high risk

of constitutional injury from Taylor’s and Dingman’s use of TASERs and deliberately

disregarded that risk. Coley further argues that Plaintiffs have not established that any

constitutional right at issue related to Coley’s supervisory duties while he was on a medical leave

of absence was clearly established. Coley argues that he is thus entitled to qualified immunity.

Qualified immunity “shields public officials from damages actions unless their conduct

was unreasonable in light of clearly established law.” Turner v. Oklahoma Oklahoma Cnty. Bd.

Of Cnty. Comm’rs., No. 19-6092, 2020 WL 995729, at *2 (10th Cir. 2020) (citation omitted).

“Qualified immunity also applies to supervisory liability in § 1983 cases.” Id. (citation omitted).

“Although qualified immunity defenses are typically resolved at the summary judgment

stage, district courts may grant motions to dismiss on the basis of qualified immunity.” Myers v.

Brewer, 773 Fed.Appx. 1032, 1036 (10th Cir. 2019) (citing Thomas v. Kaven, 765 F.3d 1183,

1194 (10th Cir. 2014). At the motion to dismiss stage, however, defendants are subject “to a

more challenging standard of review than would apply” at the summary judgment stage. Id. “At

the motion to dismiss stage, it is the defendant’s conduct as alleged in the complaint that is

scrutinized for objective legal reasonableness.” Turner, 2020 WL 995729, at *2 (citation

omitted and emphasis added).

Accordingly, when a defendant raises a qualified immunity defense in response to a

motion to dismiss, the court employs a two part test to determine whether Plaintiff (1) plausibly

pleaded that the defendant violated a constitutional right, and (2) shows that the constitutional

right was clearly established at the time of the defendant’s alleged misconduct. Id. at *3. The

court has discretion to decide which of the two prongs to address first considering the

circumstances of the case and need not address both. Id.

“A plaintiff may show clearly established law by pointing to either a Supreme Court or

Tenth Circuit decision, or the weight of authority from other courts, existing at the time of the

alleged violation.” Knopf v. Williams, 884 F.3d 939, 944 (10th Cir. 2018) (citation omitted). A

law is not clearly established unless existing precedent has “placed the statutory or constitutional

question beyond debate.” Id. (citation omitted). This is an objective test. Brown, 662 F.3d at

1164.

The court must not “define clearly established law at a high level of generality.”

Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (citing Ashcroft, 563 U.S. at 742); Knopf, 884 F.3d

at 944 (citing Ashcroft, 563 U.S. at 742). Of course, a prior case need not have identical facts.

Perry v. Durborow, 892 F.3d 1116, 1126 (10th Cir. 2018); Patel v. Hall, 849 F.3d 970, 980 (10th

Cir. 2017). Still, the “clearly established law must be ‘particularized’ to the facts of the case.”

Knopf, 884 F.3d at 944 (citation omitted).

The court first addresses the first prong – whether Plaintiffs plausibly pleaded that Coley

violated a constitutional right. Section “1983 allows a plaintiff to impose liability upon a

defendant-supervisor who creates, promulgates, implements, or in some other way possesses

responsibility for the continued operation of a policy the enforcement (by the defendant-

supervisory or her subordinates) of which ‘subjects, or causes to be subjected’ that plaintiff ‘to

the deprivation of any rights . . . secured by the Constitution . . . .” Dodds v. Richardson, 614

F.3d 1185, 1199 (10th Cir. 2010).

To plausibly allege a claim for supervisory liability, Plaintiffs must allege an “affirmative

link” between Coley and the alleged constitutional injury by alleging that: (1) Coley

promulgated, created, implemented or possessed responsibility for the continued operation of a

policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind

required to establish the alleged constitutional deprivation.” Id.

Plaintiffs allege, inter alia, that Coley’s responsibilities included the promulgation,

creation, implementation, or possession of responsibility for the continued operation of the City

of Wilson’s use of force policy as applied by his subordinate officers. Plaintiffs allege that

Coley expected Taylor and Dingman to use TASERs as part of their job duties, and that while

their use of TASERs on Lakey was excessive and not proportional to the circumstances

confronting them, it was consistent with the City of Wilson’s use of force policy and

affirmatively approved and ratified by Coley after he reviewed the incident and videos.

Plaintiffs allege that Taylor previously used a TASER in this manner at the direction of Coley.

Plaintiffs have stated a claim for supervisory liability.

As to the second qualified immunity prong – whether the constitutional right was clearly

established, the parties disagree about what Plaintiffs must demonstrate. Plaintiffs cite Tenth

Circuit precedent showing that it is clearly established law that repeatedly tasing a subdued

person violates their constitutional rights. Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016)

(“The repeated use of the taser against a subdued offender is clearly unreasonable and constitutes

excessive force under the Fourth Amendment.”)

Coley correctly argues, however, that for their supervisory liability claim against him,

Plaintiffs must show that “clearly established law . . . would . . . have put a reasonable official in

[Coley’s] position on notice that his supervisory conduct would” violate Lakey’s constitutional

rights. Perry v. Durborow, 892 F.3d 1116, 1123 (10th Cir. 2018) (citation omitted). “In other

words, [Plaintiffs] must ‘identify a case where an offic[ial] acting under similar circumstances as

[Coley] was held to have violated’ the Constitution.” Id. (citation omitted).3 Plaintiffs have not

identified a case where an official acting under similar circumstances as Coley was held to have

violated the Constitution. Accordingly, pursuant to Perry, Coley is entitled to qualified

immunity. His motion, therefore, is granted. Coley is dismissed from this action in his

individual capacity.

3 While Coley is correct about the clearly-established-law question, the court does not agree that

Plaintiffs must identify a case where a supervisor was on medical leave at the time of the alleged

constitutional violation. Plaintiffs have alleged that Coley promulgated, created, implemented or

possessed responsibility for the continued operation of a policy that caused constitutional harm

to Lakey, and that Coley acted with the state of mind required to establish the alleged

constitutional deprivation. The fact of his absence on the date of the alleged violation likely does

not alter these allegations. If it does, that is a question more appropriate at the summary

judgment stage.

D. City of Wilson & Kevin Coley, in his official capacity

Plaintiffs name the City of Wilson in their first, third, fourth, sixth, ninth, and tenth

claims for relief and Coley in his official capacity in their fifth claim for relief. The City of

Wilson and Coley move for dismissal of these claims.

As to the first claim for municipal liability, Plaintiffs must allege (i) that an officer

committed an underlying constitutional violation; (ii) that a municipal policy or custom exists;

and (iii) that there is a direct causal link between the policy or custom and the injury alleged.

Graves v. Thomas, 450 1215, 1218 (10th Cir. 2006). As stated above, Plaintiffs have so alleged.

The motion is denied as to the first claim.

Plaintiff’s third claim for civil conspiracy against Taylor, Dingman and the City of

Wilson is based on the allegations that Taylor and Dingman conspired to falsely report the

sequence and number of TASER exposures. While Plaintiffs plausibly alleged that Taylor and

Dingman conspired, the City is correct that it cannot be held vicariously liable for any alleged

agreement between co-employees to violate constitutional rights. Monell v. Department of Soc.

Servs., 436 U.S. 658, 690-91 (1978). Nevertheless, Plaintiffs have plausibly pleaded that Taylor

was the acting police chief at the time of the alleged violation. Accordingly, the court will not

dismiss this claim at this time. The motion is denied as to the third claim.

As to the fourth claim for failure to train, the City argues that the claim fails because

Plaintiffs failed to allege a pattern of deficiency. Plaintiffs correctly argue that a pattern is not

required to prevail on all claims of failure to train. Lance v. Morris, 985 F.3d 787, 801-02 (10th

Cir. 2001). To state a claim for a failure to train, Plaintiffs must allege: (1) the existence of a

policy or custom involving deficient training; (2) the policy or custom’s causation of an injury;

and (3) the City of Wilson’s adoption of the policy or custom with deliberate indifference. Id. at

800. The court will not delve into and analyze herein each of the prongs and the subparts thereto

at this stage, but finds that Plaintiffs have sufficiently pleaded a claim for failure to train. The

motion is denied as to the fourth claim.

Plaintiffs’ fifth claim for municipal liability is based on their allegation that Taylor was a

final policymaker. Alternatively, Plaintiffs allege that Coley or the City of Wilson “was the final

policymaker and, as detailed above, promulgated, created, implemented, or possessed

responsibility for the continued operation of the Wilson use of force policy . . . .” Docket No.

87, at 42. The City of Wilson moves for dismissal of this claim, arguing that Taylor was not the

final policymaker, that his use of excessive force was not reflective of any City of Wilson policy,

and that Coley was not a final policymaker because he was on medical leave. Plaintiffs have

plausibly pleaded this claim in the alternative.4 The motion is denied as to the fifth claim.

As to the sixth claim for entity liability for excessive force, the City of Wilson argues that

Plaintiffs have not sufficiently alleged that “ratification or approval” of the video represents a

policy or custom of the City of Wilson that existed at the time of the incident or that any

“ratification or approval” was the moving force or cause of the alleged violation of Lakey’s

constitutional rights. Plaintiffs sufficiently pleaded that Coley ratified Taylor’s and Dingman’s

actions post-incident as being consistent with existing City of Wilson policy or practice.

Plaintiffs have also sufficiently pled that the City of Wilson’s use of force policy caused the

violation of Lakey’s constitutional rights. The motion is denied as to the sixth claim.

4 Although if this claim is ultimately based on Coley’s actions, it appears to possibly be

duplicative of the first claim.

As to the ninth claim for “statutory excessive force” pursuant to 22 OKLA. STAT. §

34.1(B), the motion is granted. As stated above, this is a criminal statute which confers no

private right of action to a civil litigant. The motion is granted as to the ninth claim.

The City of Wilson argues that Plaintiffs tenth claim for failure to intervene, at least as it

pertains to the City of Wilson, is conclusory. Plaintiffs simply state that Taylor and Dingman

failed to intervene, which caused Lakey’s injuries, and for which the City of Wilson is liable.

Plaintiffs have alleged, however, that Taylor was acting in accordance with the City of Wilson’s

policies or customs and that he was a final policymaker as the acting chief of police. The motion

is denied as to the tenth claim.

II. Summary

The motion for partial dismissal filed by Chris Bryant in his official capacity [Docket No.

97] is hereby DENIED as to the federal claims and GRANTED as to the state claim for

“statutory excessive force.” The motion to dismiss filed by Lone Grove and Terry Miller

[Docket No. 98] is hereby DENIED. The motion to dismiss filed by Kevin Coley in his

individual capacity [Docket No. 101] is hereby GRANTED. Kevin Coley is dismissed from this

action in his individual capacity. The motion to dismiss filed by the City of Wilson and Kevin

Coley in his official capacity [Docket No. 102] is hereby DENIED as to Plaintiffs’ first, third,

fourth, fifth, sixth, and tenth claims and GRANTED as to the state claim for “statutory excessive

force.” IT IS SO ORDERED this 1st day of February, 2022.

______________________________________

THE HONORABLE RONALD A. WHITE

UNITED STATES DISTRICT JUDGE

EASTERN DISTRICT OF OKLAHOMA