# Logsdon v. Gilliam

> District Court, E.D. Oklahoma · October 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10385565

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** October 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

DONALD RAY LOGSDON, JR., )
)
Plaintiff, ) CIVIL ACTION
)
v. ) No. 21-253-KHV
)
UNITED STATES MARSHAL SERVICE, et al., )
)
Defendants. )
____________________________________________)

MEMORANDUM AND ORDER

Donald Ray Logsdon, Jr. filed suit pro se against the United States Marshal Service
(USMS) and three of its officers (Phillip Gilliam, Jere Smith and Cody Vaughn), alleging
excessive force during his arrest in March of 2020. Plaintiff asserts his claim under Bivens v. Six
Unknown Agents of Fed. Bur. Of Narcotics, 403 U.S. 388 (1971). On March 3, 2022, the Court
dismissed the USMS. See Order (Doc. #43). This matter is before the Court on Defendant
Gilliam, Smith, And Vaughn’s Motion To Dismiss (Doc. #87) filed July 5, 2022 and plaintiff’s
Notice (Doc. #93) filed August 18, 2022, which the Court construes as a motion to strike Exhibit A
to Defendant Gilliam, Smith, And Vaugh’s Motion To Dismiss (Doc. #87). For reasons stated
below, the Court overrules both motions.
Legal Standards
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as
true all well-pleaded factual allegations and determines whether they plausibly give rise to an
entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to
dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible—not
merely conceivable—on its face. Id. at 679–80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). To determine whether a complaint states a plausible claim for relief, the Court draws on
its judicial experience and common sense. Iqbal, 556 U.S. at 679.
The Court need not accept as true those allegations which state only legal conclusions.
See id. at 678. Plaintiff makes a facially plausible claim when he pleads factual content from
which the Court can reasonably infer that defendants are liable for the misconduct alleged. Id.

However, plaintiff must show more than a sheer possibility that defendants have acted
unlawfully—it is not enough to plead facts that are “merely consistent with” defendants’ liability.
Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a
formulaic recitation of the elements of a cause of action, or naked assertions devoid of further
factual enhancement will not stand. Id. Similarly, where the well-pleaded facts do not permit
the Court to infer more than the mere possibility of misconduct, the complaint has alleged—but
has not “shown”—that the pleader is entitled to relief. Id. at 679. The degree of specificity
necessary to establish plausibility and fair notice depends on context; what constitutes fair notice
under Fed. R. Civ. P. 8(a)(2) depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242,

1248 (10th Cir. 2008).
The Court construes plaintiff’s pro se complaint liberally and holds it to a less stringent
standard than formal pleadings drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). The Court does not, however, assume the role of advocate for a pro se litigant. Id.
A pro se litigant must “follow the same rules of procedure that govern all other litigants.” Nielsen
v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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Factual Background
Plaintiff’s complaint, as supplemented by the documents subject to judicial notice,1 alleges
as follows:
On March 5, 2020, Deputy U.S. Marshals Gilliam, Smith and Vaughn executed a state
court warrant for plaintiff’s arrest on a charge of assault with a dangerous weapon. Defendants

secretly approached plaintiff after dark while he was working on a generator outside at a friend’s
house. Without announcing their presence, Gilliam ran up behind plaintiff and kicked him in the
face, which left him unconscious. For some two minutes, Gilliam, Smith and Vaughn took turns
stomping on plaintiff, who never attempted or even had an opportunity to resist.
On October 14, 2020, plaintiff pled guilty to one count of possession of a firearm and
ammunition by a convicted felon. Specifically, plaintiff admitted that on March 5, 2020, he
unlawfully possessed a .38 Special caliber revolver and five rounds of ammunition.
Defendants ask the Court to dismiss plaintiff’s complaint because (1) Bivens does not
provide a remedy for his allegations that Deputy U.S. Marshals used excessive force and (2) they

1 Generally, when deciding a motion to dismiss under Rule 12(b)(6), the Court may
not look beyond the four corners of the complaint. Dean Witter Reynolds, Inc. v. Howsam, 261
F.3d 956, 961 (10th Cir. 2001). One exception to this rule permits the Court to consider facts
which are subject to judicial notice. See Fed. R. Evid. 201(b) (judicially noticed fact must be one
not subject to reasonable dispute because it is generally known within territorial jurisdiction of
trial court or capable of accurate and ready determination from sources whose accuracy cannot
reasonably be questioned). Here, at defendants’ request, the Court takes judicial notice of several
documents from a related criminal proceeding in United States v. Logsdon, E.D. Okla. No. CR-
20-29-JFH, including plaintiff’s Petition To Enter Plea Of Guilty And Order Entering Plea, the
Transcript of Change Of Plea, and the Warrant for plaintiff’s arrest, attached as Exhibits A, B and
C to Defendant Gilliam, Smith, And Vaughn’s Motion To Dismiss (Doc. #87). See Trusdale v.
Bell, 85 F. App’x 691, 693 (10th Cir. 2003) (judicial notice of district court records concerning
plaintiff’s criminal conviction); St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d
1169, 1172 (10th Cir. 1979) (federal courts may take notice of proceedings in other courts if
proceedings have direct relation to matters at issue).

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are entitled to qualified immunity.
Analysis
I. Availability Of Bivens Remedy
Defendants ask the Court to dismiss plaintiff’s complaint because Bivens does not provide
a remedy for his allegations that Deputy U.S. Marshals used excessive force. In Bivens, under

general principles of federal jurisdiction, the Supreme Court created a cause of action under the
Fourth Amendment against federal agents who allegedly manacled the plaintiff and threatened his
family while arresting him for narcotics violations. Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022)
(citing Bivens, 403 U.S. at 397 and Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). After Bivens
was decided in 1971, the Supreme Court created new causes of action in only two other
circumstances: (1) a sex discrimination claim for a former congressional staffer under the Fifth
Amendment and (2) an inadequate care claim for a federal prisoner under the Eighth Amendment.
Egbert, 142 S. Ct. at 1802 (citations omitted).
To determine whether plaintiff has stated a claim under Bivens, the Court applies a two-

step inquiry. Id. at 1803. First, the Court determines whether plaintiff’s complaint alleges facts
which present a “new Bivens context,” that is a context “‘meaningful[ly]” different from the three
cases in which the Supreme Court has implied a damages action. Id. (quoting Ziglar, 137 S. Ct.
at 1859–60). Examples of how a case might differ in a meaningful way include “the rank of the
officers involved; the constitutional right at issue; the generality or specificity of the official action;
the extent of judicial guidance as to how an officer should respond to the problem or emergency
to be confronted; the statutory or other legal mandate under which the officer was operating; the
risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence

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of potential special factors that previous Bivens cases did not consider.” Ziglar, 137 S. Ct. at
1860. Second, if plaintiff’s claim presents a new context, the Court cannot recognize a Bivens
remedy if “special factors” indicate that “the Judiciary is at least arguably less equipped than
Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Egbert, 142
S. Ct. at 1803 (quoting Ziglar, 137 S. Ct. at 1858).

Here, plaintiff alleges that even though he did not know officers were present and had no
opportunity to resist, Gilliam ran up behind him and kicked him in the face, and that while he was
unconscious, Gilliam, Smith and Vaughn took turns stomping on him for some two minutes.
Plaintiff’s complaint asserts facts that are not meaningfully different than the circumstances in
Bivens. Both cases involve rank-and-file federal law enforcement officers making arrests. The
constitutional right under the Fourth Amendment to be free from excessive force during an arrest
and the legal mandate which governs the officers’ conduct are the same in both cases. See
Graham v. Connor, 490 U.S. 386, 395 (1989) (“all claims that law enforcement officers have used
excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure”

of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach”) (emphasis in original). The
Supreme Court and the Tenth Circuit have provided extensive judicial guidance on how much
force officers can use to arrest an individual. See id. at 395–97; McCoy v. Meyers, 887 F.3d
1034, 1045–47 (10th Cir. 2018); Casey v. City of Fed. Heights, 509 F.3d 1278, 1281–83 (10th Cir.
2007). Unlike Egbert, which involved national security considerations raised in an excessive
force claim against a Border Patrol agent, plaintiff’s case presents a garden variety claim that
officers employed “unreasonable force . . . in making the arrest.” Bivens, 403 U.S. at 389; see

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Egbert, 142 S. Ct. at 1804–06; see also Hernandez v. Mesa, 140 S. Ct. 735, 739 (2020) (“Unlike
any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and
national security implications.”); Ziglar, 137 S. Ct. at 1860 (claims that challenge confinement
conditions imposed on illegal aliens under high-level executive policy created in wake of major
terrorist attack on American soil present new Bivens context). Plaintiff’s excessive force claim

does not go beyond the Bivens context or its “core purpose of deterring individual officers from
engaging in unconstitutional wrongdoing.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74
(2001).
Defendants argue that plaintiff’s specific allegations of excessive force present a new
Bivens context because they arrested plaintiff away from his home and pursuant to a duly-issued
warrant. The remedy that the Supreme Court recognized in Bivens, however, is not limited to the
precise allegations that federal agents employed excessive force during a warrantless arrest of an
individual in his home. Instead, Bivens held more broadly that an individual could “recover
money damages for any injuries he ha[d] suffered as a result of the agents’ violation of the [Fourth]

Amendment,” which necessarily included a remedy for plaintiff’s claim of “unreasonable force
[that officers] employed in making the arrest.” Bivens, 403 U.S. at 389, 397 (emphasis added).
A warrant for an arrest does not give officers carte blanche to employ unreasonable force or
otherwise disregard the rights of an individual under the Fourth Amendment. In sum, defendants
have not shown that the existence of an arrest warrant and the fact that officers arrested plaintiff
away from his home are potentially special factors that previous Bivens cases did not consider.2

2 In an unpublished decision, the Tenth Circuit addressed whether Deputy U.S.
Marshals were entitled to qualified immunity on plaintiff’s excessive force claim brought under
(continued . . .)

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Ziglar, 137 S. Ct. at 1860; see Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 709 (S.D.N.Y. 2020)
(Bivens includes garden variety excessive force cases; location of arrest and existence of warrant
are not special factors that Bivens did not consider); Lehal v. Cent. Falls Det. Facility Corp.,
No. 13CV3923 (DF), 2019 WL 1447261, at *12 (S.D.N.Y. Mar. 15, 2019) (excessive force claim
against Deputy U.S. Marshals did not present new Bivens context; location of arrest and existence

of warrant are not potential special factors that Bivens did not consider).3
Because plaintiff has alleged facts which support an excessive force claim that is not
meaningfully different than Bivens, the Court need not assess whether special factors establish that
the Judiciary is less equipped than Congress to weigh the costs and benefits of allowing this
damages action to proceed. Cf. Bueno Diaz, 442 F. Supp. 3d at 710–12 (even if excessive force
claim arose in new Bivens context, no special factors would counsel hesitation in recognizing

2(. . . continued)
Bivens. See Serrano v. United States, 766 F. App’x 561, 565–70 (10th Cir. 2019). In doing so,
the Tenth Circuit did not question—and therefore apparently assumed—that Bivens provided a
cause of action to an arrestee who alleged that while executing an arrest warrant, officers used
excessive force. Indeed, as to plaintiff’s claim that one officer failed to intervene to prevent other
officers from using excessive force, the Tenth Circuit held that because such a claim is viable
under Section 1983, plaintiff could also pursue such a claim under Bivens. 766 F. App’x at 570.

3 Defendants also argue that plaintiff’s allegations present a new Bivens context
because during the arrest, they found a loaded firearm in his possession. To establish this fact,
defendants rely on plaintiff’s guilty plea in his criminal case, which is subject to judicial notice.
Plaintiff’s plea establishes, however, only that at some time on the day of March 5, 2020, he
possessed a firearm and ammunition—it did not address whether officers discovered the firearm
and ammunition when they arrested him that day or whether the ammunition was loaded in the
firearm. See Petition To Enter Plea Of Guilty And Order Entering Plea at 2; Transcript Of Change
Of Plea at 24–25. On a summary judgment motion, the Court could potentially make such factual
inferences—if not rebutted by plaintiff—but it will not do so for purposes of determining what
facts are subject to judicial notice on a motion to dismiss. In any event, even if officers ultimately
discover that an arrestee has a loaded weapon, that fact does not necessarily excuse the use of a
particular level of force, especially here where plaintiff alleges that he did not resist and the record
does not suggest that officers knew that he had a weapon before they employed force.

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Bivens remedy). The Court therefore overrules defendants’ argument that plaintiff cannot state a
claim under Bivens.
II. Qualified Immunity
Defendants assert that even if plaintiff has stated a plausible claim under Bivens, they are
entitled to qualified immunity. Smith and Vaughn assert that they are entitled to qualified

immunity because plaintiff has not alleged their “direct and personal participation in an alleged
Fourth Amendment violation.” Defendant Gilliam, Smith, And Vaugh’s Motion To Dismiss
(Doc. #87) at 14. Gilliam argues that he is entitled to qualified immunity because plaintiff has
not alleged an underlying constitutional violation of a clearly established right. Id. at 15.
In deciding a motion to dismiss based on qualified immunity, the Court considers whether
plaintiff has alleged facts which establish a violation of a constitutional right and whether at the
time of the alleged misconduct, the right at issue was clearly established. See Leverington v. City
of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011). Whether a right is “clearly established” is
an objective test. A constitutional right is clearly established when it is “sufficiently clear that

every reasonable official would have understood that what he is doing violates that right.” Est.
of Ceballos v. Husk, 919 F.3d 1204, 1215 (10th Cir. 2019) (citations omitted). The Supreme
Court has warned against defining a clearly established right “at a high level of generality” and
that the law must be “particularized to the facts of the case,” but this does not mean that a right is
only clearly established if a case exists that is factually identical. Id. (citations omitted). In other
words, the “clearly established” prong does not require plaintiff to show that “the very act in
question previously was held unlawful.” Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir. 2008)
(citations omitted). This makes good sense: if a right is clearly established only when a prior case

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presents identical facts, qualified immunity would apply under every different fact pattern. Under
this standard, officials would always be entitled to qualified immunity so long as their actions—
no matter how outrageous or harmful—were sufficiently novel. The Tenth Circuit has therefore
explained that the “more obviously egregious the conduct in light of prevailing constitutional
principles, the less specificity is required from prior case law to clearly establish the violation.”

Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008); see Duran v. Sirgedas, 240 F. App’x
104, 127 (7th Cir.), vacated in part on reh’g (July 17, 2007) (citations omitted) (“It would create
perverse incentives indeed if a qualified immunity defense could succeed against those types of
claims that have not previously arisen because the behavior alleged is so egregious that no like
case is on the books.”).
A. Constitutional Violation
The use of excessive force implicates a person’s Fourth Amendment right to be free from
unreasonable seizure. See Graham, 490 U.S. at 394. The Court evaluates whether the amount
of force that an officer used was “objectively reasonable” in light of the facts and circumstances

confronting the officer, without regard to his underlying intent or motivation. Id. at 397. Such
circumstances include (1) the severity of the crime at issue, (2) whether the suspect poses an
immediate threat to the safety of the officers or others, (3) whether the suspect is actively resisting
arrest or attempting to flee, (4) whether the officers ordered the suspect to drop any weapons and
the suspect’s response to any such commands, (5) whether the suspect made any hostile motions
with a weapon towards the officers, (6) the distance between the officers and the suspect and
(7) the manifest intentions of the suspect. Id. at 396 (identifying factors (1) through (3)); Est. of
Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (identifying factors (4)

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through (7)). Reasonableness must be determined from the “perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
As noted above, plaintiff alleges that (1) he had no opportunity to resist because he did not
know officers were present, (2) Gilliam ran up behind him and kicked him in the face, which
caused him to lose consciousness and (3) while he was unconscious, Gilliam, Smith and Vaughn

took turns stomping on him for some two minutes. Plaintiff’s complaint admittedly is brief, but
it includes enough well-pleaded facts to permit the Court to infer that all three defendants used
force that was not objectively reasonable under the Fourth Amendment. See Iqbal, 556 U.S. at
678–79.
B. Clearly Established Law
Because excessive force cases require the Court to conduct an all-things-considered inquiry
with “careful attention to the facts and circumstances of each particular case,” a previously
published opinion rarely will involve the exact same factual circumstances. Casey, 509 F.3d at
1284 (quoting Graham, 490 U.S. at 396).

Accepting plaintiff’s version of the facts in the complaint and based on the state of the law
on March 5, 2020, reasonable officers would have been aware that the alleged level of force they
used was not objectively reasonable. Plaintiff alleges that Gilliam knocked him unconscious
without his knowledge that officers were even present, so he had no opportunity to resist. After
Gilliam’s kick left plaintiff unconscious, all three officers took turns stomping on him. Despite
the fact that officers were executing an arrest warrant for a charge of assault with a dangerous
weapon, a reasonable officer would have understood that this “obviously egregious” conduct (both
the initial disabling kick without asking plaintiff to surrender and the stomping of plaintiff when

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he was unconscious) was not objectively reasonable. Fogarty, 523 F.3d at 1161; see Graham, 490
U.S. at 396; see also Wilkins v. City of Tulsa, Okla., 33 F.4th 1265, 1277 (10th Cir. 2022) (pre-
2017 precedent clearly established that force against subdued suspect who does not pose threat
violates Fourth Amendment); McCoy v. Meyers, 887 F.3d 1034, 1052 (10th Cir. 2018) (obvious
to officer that continuing to use force on unconscious, handcuffed and zip-tied arrestee was

excessive); Casey, 509 F.3d at 1284 (when officer’s violation of Fourth Amendment is clear from
Graham itself, a second decision with greater specificity is not required to clearly establish the
law).
Because plaintiff has alleged the violation of his clearly established right to be free from
the use of excessive force in effecting an arrest, defendants are not entitled to qualified immunity.
The Court therefore overrules defendants’ motion to dismiss on that ground.
IT IS THEREFORE ORDERED that Defendant Gilliam, Smith, And Vaugh’s Motion
To Dismiss (Doc. #87) filed July 5, 2022 is OVERRULED.
IT IS FURTHER ORDERED that plaintiff’s Notice (Doc. #93) filed August 18, 2022,

which the Court construes as a motion to strike Exhibit A to Defendant Gilliam, Smith, And
Vaugh’s Motion To Dismiss (Doc. #87) is OVERRULED as moot.
Dated this 21st day of October, 2022 at Kansas City, Kansas.

s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10385565. Public record. Not legal advice.