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 )

CHIEF OF POLICE TERRY FRANKLIN, )

individually, )

)

Defendants. )

OPINION AND ORDER

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

Motion for Summary Judgment (Docket Entry #66) and Defendant City of

Sallisaw’s and Terry Franklin’s Motion for Summary Judgment (Docket Entry

#67). The parties consented to the jurisdiction of a United States

Magistrate Judge on July 20, 2022.

Statement of Uncontroverted Facts

On October 23, 2021, Defendant Lieutenant Houston Murray

(“Murray”), a law enforcement officer with Defendant City of Sallisaw

(the “City”), was on patrol when he observed a pickup truck travelling

in the opposite direction on Highway 64 with one headlight illuminated.

Specifically, the headlight on the driver’s side of the truck was visibly

unlit. DashCam Video, Docket Entry Nos. 66 and 67, Exh. No. B at 00:32.1

1 The entirety of the traffic encounter between Buckner and Murray is captured

on the dash camera of Murray’s patrol unit and his body camera. See, Exhibit

Murray activated his overhead lights on his patrol unit, made a u-turn

in the street and pursued the truck. DashCam Video at 00:37-00:43. The

truck promptly pulled over into a motel parking lot and stopped. DashCam

Video at 01:09.

Murray approached the truck on the driver’s side. DashCam Video

at 01:36. The driver, identified as Plaintiff, rolled down his window

and asked, “What can I do for you?”. Murray stated, “The reason I pulled

you over is you have a headlight out. I need to see your license,

insurance, and registration.” BodyCam Video at 00:10-00:14. Plaintiff

then began arguing with Murray, claiming he did not have a headlight

out. BodyCam Video at 00:14-00:16. Plaintiff did not produce his

license, insurance, and registration. Rather, Plaintiff got out of his

truck, went to the front of his vehicle and said, “Damn”, in obvious

reference to the fact that the driver’s side headlight was not

illuminated. BodyCam Video at 00:13-00:28.

At this point in the video, Plaintiff’s wife, who occupied the

passenger seat of the truck, leaned over and activated the high beam on

the headlights of the truck. Plaintiff then stated, “No, I don’t.” Id.

Murray told Plaintiff’s wife to return the headlights to low beam.

BodyCam Video at 00:28-00:33. Plaintiff then returned to the driver’s

seat of the truck, stating, “Okay, I got a headlight out.” BodyCam

Video at 00:43-00:45.

Murray again requested that Plaintiff produce his license,

insurance, and registration. BodyCam Video at 00:45. In response,

Plaintiff produced his license while still discussing the headlight with

his wife. BodyCam Video at 00:47-1:00. Murray stated that the stop

would have gone differently if Plaintiff would have simply agreed that

he had a headlight out. BodyCam Video at 01:01-01:04. When Murray

informed Plaintiff that he intended to write a citation, Plaintiff stated

that he was going to “call a buddy.” BodyCam Video at 01:11-01:13. He

informed Murray that he was going to call Cole Hostetter, a City of

Sallisaw patrol law enforcement officer. BodyCam Video at 01:14-01:15.

Murray again requested Plaintiff to provide his registration and

insurance. BodyCam Video at 01:16-01:17. Plaintiff insisted upon

calling “Cole” and did not provide the documentation requested.

Murray asked Plaintiff if he was a member of the Cherokee Nation

to which Plaintiff responded “Yes, I am. Why?” Murray responded that

he would have to designate a different court on the citation. BodyCam

Video at 01:19-01:26.

Murray once again requested that Plaintiff produce his registration

and insurance. Plaintiff responded, “Let me call Cole.” Murray

responded, “Please don’t. I don’t have time to talk to him.” BodyCam

Video at 01:27-01:30. Murray then directed that the registration and

insurance be produced emphatically. BodyCam Video at 01:32-01:38.

Plaintiff insisted, “Let me call Cole.” BodyCam Video at 01:38-01:39.

Plaintiff told Murray to “chill out.” BodyCam video at 01:42-01:43.

Murray again directed that Plaintiff produce the required documents and

told Plaintiff that he did not have time to “sit here and wait for you”

to do so. BodyCam Video at 01:44-01:48. Murray told Plaintiff that he

was free “to call Cole and talk to him all day long” but only after he

produced the registration and insurance. BodyCam Video at 01:49-01:53.

Plaintiff discussed Murray’s behavior with his wife. Murray then

asked Plaintiff why he was making the process difficult and told him he

needed the documents, “so I can write my ticket and get you out of here.”

BodyCam Video at 02:02-02:21.

Plaintiff then produced an insurance verification form. BodyCam

Video at 02:22. Murray reviewed the form but returned it to Plaintiff

because it was expired and invalid. Plaintiff then handed Murray his

registration. BodyCam Video at 02:33. Murray offered to allow

Plaintiff an opportunity to provide an electronic proof of insurance on

his cell phone. BodyCam Video at 02:39. Plaintiff and his wife then

attempted to access the form. Neither, however, could produce the proof

of insurance. BodyCam Video at 02:46-03:15. Plaintiff told Murray,

“write a ticket for that, too.” BodyCam Video at 03:05. Plaintiff and

Murray then engaged in a verbal altercation over one another’s attitude.

Plaintiff then reiterated he was calling “Cole.” BodyCam Video at 03:14-

03:33.

Murray took the information back to his patrol unit, stating under

his breath that Plaintiff could call “Cole”, “like he makes a damn” and

“he’s a pissant, too.” BodyCam Video at 03:29-03:40. Murray got into

his patrol unit and prepared a citation for Plaintiff. BodyCam Video

at 03:43-10:18.

Murray returned to Plaintiff’s truck and handed him his

registration and license. BodyCam Video at 10:31. Plaintiff stated he

could not hear Murray. BodyCam Video at 10:34. Plaintiff’s wife

attempted to show Murray her cell phone and proof of insurance. BodyCam

Video at 10:37. Murray informed Plaintiff of the date, time, and

location of the court hearing on the citations. BodyCam Video at 10:43-

10:52. Murray stated he was writing a ticket for the headlight and not

having an insurance security form available when requested. BodyCam

Video at 11:07-11:11.

Plaintiff asked Murray if he was a lieutenant, to which Murray

responded he was. BodyCam Video at 11:17. Plaintiff asked how he could

file a complaint against Murray. Murray told him to go and talk to

Lieutenant Martins tonight. BodyCam Video at 11:18-11:28. Plaintiff

accused Murray of giving him a citation of the headlight instead of a

warning because he believed he was being mean to Murray. BodyCam Video

at 11:36-11:42. Murray responded, “No, I was going to give you a ticket

anyway, sir. It’s a cruise night. Anytime I stop a car on cruise

night, I give it a ticket.” BodyCam Video at 11:39-11:45. Plaintiff

stated, “so, you’re being prejudiced against Indians?” Murray

responded, “No.” Plaintiff asked if Murray was Indian. Murray

responded, “Yes, I am. I’m a Cherokee.” BodyCam Video at 11:48-11:54.

Plaintiff and his wife continued to argue with Murray about the citation.

He concluded by stating, “I don’t give a shit. Just give me the ticket

so I can go. I got other things to do.” BodyCam Video at 11:55-12:03.

Murray then handed Plaintiff the citation and asked him to “sign

this box right here.” BodyCam Video at 12:03. Plaintiff interrupted,

stating, “I ain’t signin’ nothin’.” BodyCam Video at 12:04. Murray

responded by directing Plaintiff to “step out, then. Get out.” BodyCam

Video at 12:05-12:06. He then yelled, “Get out, now! Get out, now.”

Plaintiff responded by stating, “I’ll sign it.” Murray yelled, “No, get

out, now! Get out, now!” Plaintiff repeated he would sign the ticket,

while getting out of his truck. Murray stated, “No, I asked you to sign

it and you said you wouldn’t.” He further stated, “Put your hands behind

your back. You’re under arrest.” BodyCam Video at 12:08-12:21.

Murray put one handcuff on Plaintiff’s left wrist and instructed

that a wrecker be sent out to the location. BodyCam Video at 12:21-

12:27. Plaintiff then resisted Murray putting the handcuff on his right

wrist. BodyCam Video at 12:27-12:28. Murray instructed Plaintiff to

“loosen your hand.” BodyCam Video at 12:28. While Murray was

attempting to put the handcuff on Plaintiff’s right wrist, Plaintiff

stated, “that fucking hurts.” BodyCam Video at 12:30. Murray

responded, “if you’d quit fighting it, they won’t hurt.” BodyCam Video

at 12:32-12:33.

Plaintiff was eventually handcuffed and transported by Murray to

the Sallisaw Police Department. He was booked into jail and released

on bond.

Plaintiff did not complain further about the handcuffs causing him

distress while being transported. At the jail, a photograph was taken

of Plaintiff’s wrist. He later stated that his wrist was bruised by the

handcuffs, but Plaintiff admitted that he did not seek any medical

treatment for his wrist and the injury has since healed.

Defendants offered the affidavit of John Weber, the police Captain

of the Patrol Division for the City of Sallisaw Police Department.

Captain Weber attests that

1) Murray completed CLEET training while with the Sallisaw Police

Department;

2) Murray completed Lexipol Daily Training Bulletin training

provided by Lexipol, a private entity recognized by CLEET that

develops policies for public safety agencies and provides

training;

3) The Sallisaw Police Department maintains and enforces written

policies and procedures;

4) Murray was one of the most trained police officers in the

Sallisaw Police Department. He retired in August of 2022 after

almost 33 years as a state certified law enforcement officer;

5) Plaintiff filed a complaint over Murray’s conduct during the

stop, detention, and arrest on October 23, 2021. Captain Weber

investigated the allegations in the complaint and found no

violations other than receiving a warning for commenting to

himself on the BodyCam Video that Plaintiff and Officer

Hostetter were “pissants.”

6) Captain Weber also attested that the BodyCam Video demonstrates

at 0:12:40-0:12:54 that Murray’s actions were consistent with

an officer checking the tightness between the handcuffs after

their application, and the audible “click” was consistent with

the noise handcuffs make when the double-lock safety mechanism

is engaged to prevent the handcuffs from tightening;

7) Captain Weber found no violation of policy to warrant

disciplinary action arising from the incident in question;

8) Captain Weber was unaware of any history of Murray being accused

of using excessive force; and

9) Captain Weber was unaware of any history of Murray being accused

of making unlawful traffic stops, unlawful detentions, or false

arrests.

Murray completed CLEET training in October of 1989 and became a

certified law enforcement officer in the State of Oklahoma at that time.

Docket Entry No. 67 at Exh. No. I. Murray was hired by the City of

Sallisaw in June of 2001 as a police dispatcher. He subsequently became

a patrol officer in 2002. Id. at Exh. No. J, p. 8, ll. 14-16. Murray

later earned his Intermediate and Advanced CLEET Certificates. Id. at

Exh. Nos. K and L. He was promoted to lieutenant in the police

department patrol division in 2013. Id. at Exh. No. M. Murray completed

CLEET Field Training Officer training in 2016. Id. at Exh. No. N.

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

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 a result of the decision represented in the Opinion and Order

entered March 31, 2023, the remaining claims are (a) the § 1983 claims

for false arrest and excessive force against Murray; and (b) failure to

train and supervise against Defendants Terry Franklin (“Franklin”) and

City of Sallisaw (the “City”).2

General Standard on Summary Judgment

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 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

2 This Court is somewhat perplexed by the pleading on this latter claim against

Franklin and the City, since the relief originally requested was limited to

declaratory and injunctive relief which was dismissed as lacking support. The

Court is proceeding to address these claims on summary judgment by giving

Plaintiff the benefit of the doubt that he also seeks monetary damages for these

alleged violations.

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).

Plaintiff does not oppose any of these material facts as set forth

herein. Consequently, the only question remaining is whether Defendants

are entitled to summary judgment as a matter of law.

McGirt Effect on Case

This Court initially must address a curious comment made in

Plaintiff’s briefing in response to the summary judgment requests.

Plaintiff appears to imply that either Murray acted outside of his

jurisdiction during the arrest of Plaintiff or this Court lacks

jurisdiction to consider this case – Plaintiff’s meaning is not entirely

clear. In either event, Plaintiff is misinformed. Nothing in the

Supreme Court’s pronouncement in McGirt v. Oklahoma, 207 L. Ed. 2d 985,

140 S. Ct. 2452 (2020) precluded Murray from writing Plaintiff a citation

and arresting him. Murray recognized Plaintiff’s status as a Native

American within the bounds of a reservation as delineated in McGirt

having asked if he was a tribal member and written the citation for an

appearance in the tribal court of the Cherokee Nation. The Cherokee

Nation, in turn, recognized Murray’s authority by initiating a case based

upon Murray’s Probable Cause Affidavit. This Court would also note that

Plaintiff has not raised Murray’s lack of jurisdiction as an issue in

this action prior to responding to the summary judgment motions.

As for this Court’s jurisdiction, the action is based upon a

violation of a federal statute – 42 U.S.C. § 1983 – initiated by

Plaintiff. This Court clearly possesses the requisite jurisdiction to

consider this case.

Plaintiff concludes this portion of his response in stating,

“Jurisdiction was exclusively in the District Court of the Cherokee

Nation. Consequently, the recitation of facts (controverted or not) in

both Motions for summary judgment are of no value.” Quite honestly,

this Court has no idea of the meaning or significance of this statement,

beyond that which is addressed herein.

Claim to Qualified Immunity by Murray

Murray first asserts that he is entitled to qualified immunity on

the § 1983 claims for false arrest and excessive force. Generally,

government employees are immune from personal liability if their conduct

is reasonable in light of clearly established law and the information

that the employee possessed at the time of their actions. Davis v.

Scherer, 468 U.S. 183, 190 (1984); Harlow v. Fitzgerald, 457 U.S. 800,

818 n.30 (1982). The evaluation of a summary judgment motion on the

issue of qualified immunity is treated somewhat differently than other

summary judgment issues. Once a defendant raises a qualified immunity

defense, a plaintiff bears a heavy burden to establish that a defendant

has violated clearly established law. Hannula v. City of Lakewood, 907

F.2d 129, 130-31 (10th Cir. 1990); Lutz v. Weld County School District,

784 F.2d 340, 342-43 (10th Cir. 1986). A plaintiff must “come forward

with facts or allegations to show both that the defendant's alleged

conduct violated the law and that the law was clearly established when

the alleged violation occurred.” Pueblo Neighborhood Health Centers v.

Losavio, 847 F.2d 642, 646 (10th Cir. 1988). In making this

determination, Plaintiff must demonstrate “that right was clearly

established such that a reasonable person in the defendant's position

would have known that [his] conduct violated that right.” Maestas v.

Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003)(citation omitted).

Plaintiff claims Murray falsely arrested him after he refused to

sign the citation issued to him. “[A] warrantless arrest like the one

at issue here is constitutional if the officer has probable cause to

believe that the person arrested has committed a crime. See Romero v.

Fay, 45 F.3d 1472, 1476 (10th Cir. 1995). ‘Probable cause exists if facts

and circumstances within the arresting officer's knowledge and of which

he or she has reasonably trustworthy information are sufficient to lead

a prudent person to believe that the arrestee has committed or is

committing an offense.’ Id. (internal quotation marks omitted). ‘When a

warrantless arrest is the subject of a § 1983 action, the defendant

arresting officer is entitled to [qualified] immunity if a reasonable

officer could have believed that probable cause existed to arrest the

plaintiff.’ Id. (internal quotation marks omitted). To prove a false

arrest, therefore, the plaintiff must allege that the arresting officer

acted without probable cause.” Howl v. Alvarado, 783 F. App'x 815, 818

(10th Cir. 2019).

The initial traffic stop was justifiable as evidenced by the

DashCam Video demonstrating Plaintiff’s equipment on his truck was not

operating properly – his headlight on low beam was not illuminated.

This condition violates Oklahoma law. Okla. Stat. tit. 47 § 12-

101(A)(1)(c)(“It shall be a misdemeanor, upon conviction, punishable as

provided in Section 17-101 of this title, for any person: 1. To drive

or move, or for the owner to cause or permit to be driven or moved on

any highway, any vehicle or combination of vehicles which: * * * c. is

not at all times equipped with such lamps and other equipment in proper

condition and adjustment as required in this chapter.”); Okla. Stat.

tit. 47 § 12-203(A)(“Every motor vehicle shall be equipped with at least

two headlamps emitting a white light with at least one lamp on each side

of the front of the motor vehicle on the same level and as far apart as

practicable.”). The initial stop and the issuance of the citation for

the violation of these statutes was appropriate.

When presented with the citation by Murray, Plaintiff clearly

refused to sign it. This is also depicted clearly in the BodyCam Video.

Oklahoma law mandates the release of a person who commits a misdemeanor

traffic violation if certain conditions exist, including that the person

signs a citation, evincing a promise to appear in court on the matter.

Okla. Stat. tit. 22 § 1115.1A(A)(3)(“ In addition to other provisions of

law for posting bail, any person, whether a resident of this state or a

nonresident, who is arrested by a law enforcement officer solely for a

misdemeanor violation of a state traffic law or municipal traffic

ordinance, shall be released by the arresting officer upon personal

recognizance if: * * * 3. The arrested person acknowledges, as evidenced

by the electronic signature of the person, a written promise to appear

as provided for on the citation, unless the person is unconscious or

injured and requires immediate medical treatment as determined by a

treating physician.”). Upon Plaintiff’s refusal to sign the citation,

Murray was authorized by law to arrest him and take him into custody.

Murray acted with probable cause in arresting Plaintiff and, therefore,

did not violate the clearly established law against false arrest. Murray

is entitled to qualified immunity on Plaintiff’s false arrest claim.

Plaintiff also asserted a claim for excessive force in response to

which Murray again claims qualified immunity. The Fourth Amendment to

the Constitution precludes an illegal “seizure” of a citizen through the

use of excessive force. U.S.C.A. Const. Amend. IV. The question to be

answered in a qualified immunity context on excessive force claims is

“whether the officers’ actions are ‘objectively reasonable’ in light of

the facts and circumstances confronting them, without regard to their

underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397

(1989). Under the totality of the circumstances approach, the court is

required to consider a balance of the factors of “the severity of the

crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. at 396.

In the instance of handcuffing such as in the case before this

Court, “unduly tight handcuffing can constitute excessive force where a

plaintiff alleges some actual injury from the handcuffing and alleges

that an officer ignored a plaintiff's timely complaints (or was otherwise

made aware) that the handcuffs were too tight.” Cortez v. McCauley, 478

F.3d 1108, 1129 (10th Cir. 2007). Other than Plaintiff’s initial

complaint that the handcuff on his left wrist “fucking hurts”, he did

not complain further about the tightness of the handcuffs or any injury

arising from it during the ride to the Sallisaw Police Department.

Further, the photograph of his wrist only indicates redness, which has

been determined to be insufficient for the required element of actual

injury. Id. Plaintiff never sought medical treatment for the redness

or perceived “bruising.” Further, Captain Weber provided the

uncontroverted affidavit which indicated that he believed the handcuffs’

safety locking mechanism was engaged which prevented the handcuffs from

becoming too tight based upon the BodyCam Video. This Court, therefore,

cannot conclude that excessive force was employed by Murray in the use

of handcuffs and he is entitled to qualified immunity on this claim as

well.

In an effort to oppose summary judgment by all Defendants,

Plaintiff filed a combined response which set out the following

additional facts:

(1) Murray received a bad conduct discharge from the United States

Navy;

(2) A Special Court Martial reduced Murray’s rank and stripped

him of all medals and commendations;

(3) Factual discrepancies existed in Murray’s past employment and

service in applications to the Sallisaw Police Department;

(4) Murray denied he was convicted of a felony;

(5) Murray was a convicted felon;

(6) Murray could not purchase, use, or possess a firearm as a

convicted felon;

(7) The City was negligent by failing to conduct an adequate

background check before hiring Murray; and

(8) These additional facts preclude summary judgment.

Plaintiff wholly fails to draw any connection between Murray’s bad

conduct discharge from the United States Navy and the actions he took

in the traffic stop and subsequent arrest of Plaintiff. Simply put, the

facts cited by Plaintiff are not material to the claims asserted in this

action. Moreover, they are not factually correct and contain legal

conclusions that are erroneous. Murray’s bad conduct discharge is not

equivalent to a civilian felony – that is reserved for a dishonorable

discharge. Manual for Courts-Martial, §1003(B) and (C). The

allegations were investigated by CLEET and the discharge did not serve

as a bar to Murray’s certification. Docket Entry No. 78, Exh. No. D.

Again, Plaintiff fails to demonstrate the materiality of these events

that occurred some 32 years prior to the events of October 2021.

Failure to Train and/or Supervise Claim Against the City and Franklin

The City and Franklin also move for summary judgment on the failure

to train and/or supervise claims asserted by Plaintiff. “For a

municipality (or sheriff, in this case) to be held liable for either a

failure-to-train or failure-to-supervise claim, an individual officer

(or deputy) must have committed a constitutional violation.” Estate of

Burgaz by & through Zommer v. Bd. of Cnty. Commissioners for Jefferson

Cnty. Colorado, 30 F.4th 1181, 1189–90 (10th Cir. 2022) citing Crowson

v. Washington Cnty., Utah, 983 F.3d 1166, 1187 (10th Cir. 2020) (“[A]

failure-to-train claim may not be maintained [against a municipality]

without a showing of a constitutional violation by the allegedly un-,

under-, or improperly-trained officer.”). Because this Court has

concluded that Murray did not violate Plaintiff’s constitutional rights,

the failure to train and failure to supervise claims against both the

City and Franklin necessarily fail. These Defendants are also entitled

to summary judgment.

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

Summary Judgment (Docket Entry #66) is hereby GRANTED. Murray is

entitled to qualified immunity for the reasons stated herein.

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

Franklin’s Motion for Summary Judgment (Docket Entry #67) is hereby

GRANTED.

IT IS FURTHER ORDERED that the Pretrial Conference currently set

for April 30, 2024 and the jury trial of this case set for May 13, 2024

are hereby STRICKEN.

IT IS SO ORDERED this 29th day of April, 2024.

______________________________

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE