Buckner v. Sallisaw, City of

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

WILLIAM SEAN BUCKNER, )

)

Plaintiff, )

)

v. ) Case No. CIV-22-146-JAR

)

CITY OF SALLISAW, OKLAHOMA; )

LT. HOUSTON MURRAY, individually )

and in his official capacity; )

CHIEF OF POLICE TERRY FRANKLIN, )

individually and in his official )

capacity, )

)

Defendants. )

OPINION AND ORDER

This matter comes before the Court on Defendant Houston Murray’s

Motion to Dismiss (Docket Entry #16) and Defendant City of Sallisaw’s

and Terry Franklin’s Motion to Dismiss (Docket Entry #17). The parties

presented oral argument on the Motions at a hearing before the Court.

Plaintiff commenced this action in this Court on May 12, 2022. He

alleges that he was subjected to a traffic stop by Defendant Houston

Murray, a lieutenant with the Sallisaw Oklahoma Police Department. The

allegations in the Verified Complaint indicate that on October 23, 2021,

Plaintiff and his wife were driving on Highway 64 in Sallisaw, Oklahoma

around 6:25 p.m. Plaintiff passed a City of Sallisaw police patrol SUV

and noted that the vehicle turned around, activated his lights, and

accelerated to drive up on Plaintiff’s vehicle. Plaintiff exited the

highway and pulled into a motel parking lot. The police vehicle followed

and parked directly behind Plaintiff’s vehicle.

Defendant Murray exited his vehicle. Plaintiff states that he

rolled down the driver’s side window. Defendant Murray identified

himself and stated that the reason for the traffic stop was a burned out

head lamp. Plaintiff exited his vehicle to observe the lights.

Plaintiff’s lights were on high beam and his wife changed them to low

beam and Plaintiff alleges both lights were illuminated. He informed

Defendant Murray that the light issue had been resolved. Plaintiff

alleges Defendant Murray stated that he did not care and that his camera

on his vehicle would prove otherwise.

Plaintiff states that he returned to his vehicle and closed the

door. He asked Defendant Murray if he was going to write a citation and

Defendant Murray informed him that he was going to give him a warning

but because of Plaintiff’s attitude, he intended to write a citation.

Plaintiff states that he “argued that both headlamps were in working

order and [Defendant Murray] didn’t care.”

Defendant Murray asked for Plaintiff’s driver’s license,

registration, and proof of insurance. Plaintiff immediately provided

his license and registration but did not have a paper copy of his

insurance verification and sought to access a digital copy. Plaintiff

alleges Defendant Murray took Plaintiff’s license and registration to

his vehicle and returned with a completed citation for a lack of proof

of insurance and defective headlamps. Plaintiff states that he tried

to show Defendant Murray the digital insurance verification but he stated

it was too late.

As Defendant Murray presented the citation to Plaintiff, another

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nearby vehicle made a loud noise, making it difficult for Plaintiff to

hear Defendant Murray. After the noise subsided, Defendant Murray asked

“are you going to sign this citation?” Plaintiff answered “No”, but

states he was going to say “No, before I read it.” He then states he

told Defendant Murray three times that he would sign the citation.

Nevertheless, Plaintiff alleges Defendant Murray backed from Plaintiff’s

window, placed his hand on his gun, and ordered Plaintiff to exit his

vehicle because he was placing him under arrest.

Plaintiff again allegedly offered to sign the citation but

Defendant Murray told him it was too late and he was going to jail.

Plaintiff was handcuffed and contends the cuffs were “extremely tight”

which cause him pain. Defendant Murray responded by telling Plaintiff

to “stop resisting.” Defendant Murray told Plaintiff and his wife that

he was impounding the vehicle parked on the motel’s property. Plaintiff

asked that the vehicle not be impounded because it would force his wife

to walk home some four miles away, offering instead for his wife to drive

the vehicle home. Plaintiff alleges Defendant Murray stated that he

didn’t care and was going to impound Plaintiff’s vehicle. Defendant

Murray placed Plaintiff in the backseat of his vehicle. Plaintiff

alleges that Defendant Murray placed handcuffs on his wrist “so tight

that it pealed skin off forcing me to flinch so he could yell Stop

resisting arrest and place a charge of resisting arrest, which is

documented with photographs at the jail intake. . . .”

Defendant Murray transported Plaintiff to the police department.

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During the trip, Plaintiff alleges that he demanded that Defendant Murray

charge him with every violation that he threatened and impound his

vehicle and force his wife to walk home. Plaintiff was booked into the

jail and posted bond.

During the course of the encounter, Plaintiff alleges Defendant

Murray “asked if I was Native American, which is highly offence (sic)

to me as I belong to the Cherokee Nation, in which he had my driver’s

license, he ran my Cherokee License plates in his computer, and confirmed

the vehicle was registered to me, with Cherokee Tags. I understood this

to be a highly offense (sic) remark and that his actions was (sic) based

on the fact that I belong to the Cherokee Tribe.” Plaintiff states

that, after his arrest, he has not received a traffic citation or notice

to appear in any court.

Plaintiff also alleges that Defendant Murray has a history of

similar conduct and mistreatment of citizens and has failed to follow

the policies and procedures of the Sallisaw Police Department.

Plaintiff identifies a “John Doe” who was harassed by Defendant Murray

and “to protect him from retaliation.” He also alleges Defendant Murray

has been the subject of internal investigations by the Sallisaw Police

Department.

Plaintiff alleges Defendant Terry Franklin, the Sallisaw Police

Chief, has not adequately trained or supervised Defendant Murray. He

also states that Defendant Murray has been permitted to continue in his

job despite multiple complaints and instances of misconduct.

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Plaintiff alleges three causes of action against the Defendants:

(1) Discrimination against a Native American in violation of 42

U.S.C. § 1981. Plaintiff asserts disparate treatment by

Defendant Murray because of his status as a member of the

Cherokee Nation and because he had a tag issued by the

Cherokee Nation;

(2) Deprivation of civil rights in violation of his Fourteenth

Amendment rights as enforced through 42 U.S.C. § 1983.

Plaintiff contends Defendant Murray was acting under color of

law when he violated Plaintiff’s civil rights in respect to

a lack probable cause, unlawful detention, false arrest

without legal authority, use of excessive force, and injury

to his person.

(3) Failure to train and supervise in violation of 42 U.S.C. §

1983. Plaintiff alleges Defendant Franklin and the Sallisaw

Police Department did not have adequate training in place and

did not adequately supervise Defendant Murray. To that end,

Plaintiff seeks for the Court to impose a “proactive

Injunction” upon Defendant Franklin and the Sallisaw Police

Department requiring and precluding certain conduct outlined

in the Complaint.

As an initial matter, Defendants request that this Court take

judicial notice of the dash camera video and body camera video from

Defendant Murray’s patrol unit and his person for purposes of considering

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these motions to dismiss. Needless to say, Defendants dispute

Plaintiff’s recitation of the facts arising from the incident between

Defendant Murray and Plaintiff and his wife as stated in the Complaint

and provide flash drives containing the referenced videos. This Court,

however, does not find that the videos are the type of exhibits which

are typically considered in connection with a Rule 12(b)(6) motion to

dismiss. Consideration of evidence which is outside of the pleadings

without converting the dismissal motion to one for summary judgment is

error. Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir.

1998)( “. . . courts have broad discretion in determining whether or not

to accept materials beyond the pleadings. 5A Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 1366 (1990). Reversible

error may occur, however, if the district court considers matters outside

the pleadings but fails to convert the motion to dismiss into a motion

for summary judgment.”). Other courts considering similar requests have

also declined to consider such videos at the motion to dismiss stage,

finding it more appropriately addressed in a request for summary

judgment. See Estate of Holmes by & through Couser v. Somers, 387 F.

Supp. 3d 1233 (D. Kan. 2019), aff'd sub nom. Couser v. Gay, 959 F.3d

1018 (10th Cir. 2020). The sole exception found occurred where the

plaintiff incorporated the body camera video in the allegations of the

Complaint and did not dispute the video’s authenticity, a circumstance

not present in this case. See Harris v. Romero, 2021 WL 1169985, at *8

(D. Colo. Mar. 29, 2021), appeal dismissed, (10th Cir. June 3, 2022).

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Therefore, Defendants’ motions will be considered without regard to the

video evidence.

Section 1981 Claim for Racial Discrimination

Plaintiff asserts a claim under a claim under 42 U.S.C. § 1981,

alleging Defendant Murray engaged in discrimination based upon

Plaintiff’s citizenship in the Cherokee Nation and his status as a Native

American. Plaintiff states that he was subjected to “disparate

treatment” because he had a vehicle tag issued by the Cherokee Nation

and due to his tribal membership. In order to prevail on a claim under

§ 1981, a plaintiff must demonstrate: “(1) that the plaintiff is a member

of a protected class; (2) that the defendant had the intent to

discriminate on the basis of race; and (3) that the discrimination

interfered with a protected activity as defined in § 1981.” Barfield v.

Com. Bank, N.A., 484 F.3d 1276, 1278 (10th Cir. 2007) quoting Hampton

v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1102 (10th Cir. 2001).

The activities which are protected under § 1981 are expressly stated as

follows:

§ 1981. Equal rights under the law

(a) Statement of equal rights

All persons within the jurisdiction of the United

States shall have the same right in every State

and Territory to make and enforce contracts, to

sue, be parties, give evidence, and to the full

and equal benefit of all laws and proceedings for

the security of persons and property as is enjoyed

by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

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(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and

enforce contracts” includes the making,

performance, modification, and termination of

contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the

contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected

against impairment by nongovernmental

discrimination and impairment under color of State

law.

42 U.S.C.A. § 1981.

Plaintiff’s § 1981 claim suffers from two deficiencies on the face

of the Complaint – (1) the traffic stop involved in this case does not

entail the type of protected activity set out in § 1981; and (2) no

intentional racial discrimination has been stated in the Complaint. A

review of the allegations as made by Plaintiff does not involve the

making or enforcement of contracts or any of the other activities

provided by § 1981. As a result, the claim cannot be maintained.

Further, even if the type of racial discrimination contemplated by

§ 1981 could on some level be gleaned from the Complaint, the allegations

do not give rise to intentional discrimination. Plaintiff complains

that Murray asked if he was Native American. The Supreme Court’s

decision in McGirt v. Oklahoma, 207 L. Ed. 2d 985, 140 S. Ct. 2452 (2020)

determined that the reservations of the Muscogee (Creek) Nation had not

be disestablished and that the state courts had no jurisdiction over the

Muscogee Nation’s citizens on reservation land to prosecute crimes under

the Major Crimes Act. Since the McGirt decision and its progeny, this

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Court takes judicial notice from its own dockets it has become necessary

for law enforcement to ascertain if the suspect that they are detaining

are citizens of Native American nations in order to determine whether

the appropriate venue for prosecution is state, federal, or tribal

courts. The various Indian Nations in Oklahoma do not issue their own

driver’s licenses as other states within the United States. Therefore,

the Native American citizenship of a particular individual is not readily

ascertainable in a traffic stop, for instance, without questioning. No

racially discriminatory intent can reasonably be derived from the mere

question of tribal citizenship. Plaintiff may have considered the

remark offensive, but it was not constitutionally violative. As a

result, Plaintiff’s § 1981 claim will be dismissed.

Section 1983 Claims

A traffic stop such as the one involved in this case is a seizure

which implicates the Fourth Amendment protecting citizens against

unreasonable searches and seizures. United States v. White, 584 F.3d

935, 944-45 (10th Cir. 2009). The initial stop is appropriate if the

officer observes a violation of a traffic ordinance. United States v.

Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995). Plaintiff appears to

believe from his Complaint that he was stopped for either not having his

lights turned on at a particular time of day or having his lights turned

on at a particular time of day. Murray apparently pulled Plaintiff over

for having a headlight out. It would appear from the report attached

to the Motion that the basis for the stop was the inoperable headlight.

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Therefore, the stop appears to be justified. Because this Court is not

considering the evidence extraneous to the Complaint at this time, the

basis for the arrest will be subject to discovery and may be more

appropriately addressed by summary judgment. Similarly, the

circumstances surrounding the force used during the course of the arrest

will be subject to further discovery to determine whether it was

excessive under the circumstances.

State Law Claims

Defendants point out that Plaintiff references state law claims

over which supplemental jurisdiction will be exercised. This Court

agrees that no state law claims are identified in the Complaint.

Official Capacity Claim Against Murray and Franklin

Murray and Franklin challenge Plaintiff’s assertion of an official

capacity claim against him as duplicative of the claim asserted against

the City of Sallisaw. An official capacity claim is treated as a suit

against the municipality. McDonald v. Wise, 769 F.3d 1202, 1214-15

(10th Cir. 2014). Since this is the case, the official capacity claims

against Murray and Franklin will be dismissed.

Municipal Liability Claim Against City of Sallisaw

The City of Sallisaw asserts that Plaintiff has failed to identify

a plausible claim against it because he has not identified a

constitutionally violative policy and his failure to train claim lacks

sufficient factual support. The City seeks dismissal of the claims

against it under Fed. R. Civ. P. 12(b)(6), alleging the claims fail to

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meet the plausibility standard enunciated in United States Supreme Court

cases of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft

v. Iqbal, 556 U.S. 662 (2009). Clearly, Bell Atlantic changed the legal

analysis applicable to dismissal motions filed under Fed. R. Civ. P.

12(b)(6), creating a “refined standard” on such motions. Khalik v.

United Airlines, 671 F.3d 1188, 1191 (10th Cir. 2012)(citation omitted).

Bell Atlantic stands for the summarized proposition that “[t]o survive

a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its

face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) quoting Bell

Atlantic, 550 U.S. at 570. The Supreme Court did not parse words when

it stated in relation to the previous standard that “a complaint should

not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief” is “best forgotten as an

incomplete, negative gloss on an accepted pleading standard.” Bell

Atlantic, 550 U.S. at 546.

The Tenth Circuit has interpreted the plausibility standard as

referring “to the scope of the allegations in the complaint: if they

are so general that they encompass a wide swath of conduct, much of it

innocent, then the plaintiffs ‘have not nudged their claims across the

line from conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d

1242, 1247 (10th Cir. 2008). The Bell Atlantic case, however, did not

intend the end of the more lenient pleading requirements of Fed. R. Civ.

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P. 8(a)(2). Khalik, 671 F.3d at 1191. Rather, in Khalik, the Tenth

Circuit recognized the United States Supreme Court’s continued

endorsement of Rule 8's “short and plain statement” requirement in the

case of Erickson v. Pardus, 551 U.S. 89 (2007) wherein the Supreme Court

found “[s]pecific 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.’” Id. at 93.

While the claim is admittedly tenuous on the facts alleged, this

Court will not require Plaintiff to amend the Complaint with additional

factual details. The claim as plead provides sufficient notice to the

City of the failure to train claim against it at this time.

Qualified Immunity of Murray

Murray contends he is entitled to qualified immunity. “At the

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

complaint that is scrutinized for objective legal reasonableness.”. . .

The Court evaluates “(1) whether the facts that a plaintiff has alleged

make out a violation of a constitutional right, and (2) whether the right

at issue was clearly established.” Keith v. Koerner, 707 F.3d 1185,

1188 (10th Cir. 2013). At least insofar as an excessive force claim is

alleged, both of these elements are met. Qualified immunity will be

denied at this time until further facts surrounding the force employed

is developed.

Declaratory and Injunctive Relief

Plaintiff has failed to set forth a sufficient basis for

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declaratory or injunctive relief in the Complaint and does not justify

the inclusion of such relief in his response to the Motions. These

assertions for relief will be dismissed.

Punitive Damages Against the City of Sallisaw

Plaintiff concedes that punitive damages cannot be recovered from

the City of Sallisaw. This avenue of damages will be dismissed.

IT IS THEREFORE ORDERED that Defendant Houston Murray’s Motion to

Dismiss (Docket Entry #16) is hereby GRANTED, in part, in that the §

1981 claim, §1983 official capacity claim, and any asserted state law

claims are hereby DISMISSED. The remainder of the Motion is hereby

DENIED.

IT IS FURTHER ORDERED that Defendant City of Sallisaw’s and Terry

Franklin’s Motion to Dismiss (Docket Entry #17) is hereby GRANTED, in

part, in that the §1983 official capacity claim against Franklin, any

asserted state law claims, any declaratory or injunctive relief, and the

claim for punitive damages are hereby DISMISSED. The remainder of the

Motion is hereby DENIED.

IT IS SO ORDERED this __3_1_s_t day of March, 2023.

______________________________

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE

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