# Morris v. City of Tulsa

> District Court, N.D. Oklahoma · December 31, 2019

URL: https://www.frixlaw.com/law-library/cases/10386419

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** December 31, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
JACK TALBOT MORRIS, )
)
Plaintiff, )
)
v. ) Case No. 19-CV-0073-CVE-JFJ
)
CITY OF TULSA, )
JOSHUA E. DUPLER, )
ANTHONY FIRST, and )
KURT DODD, )
)
Defendants.
OPINION AND ORDER
Now before the Court is Defendants Joshua Dupler, Anthony First, and Kurt Dodd’s Motion
to Dismiss Plaintiff’s First Amended Complaint (Dkt. # 29). The individual defendants argue that
they are entitled to qualified immunity from plaintiff Jack Talbot Morris’ claims under 42 U.S.C.
§ 1983, and they also assert that plaintiff has failed to state a claim upon which relief can be granted
under state or federal law. Dkt. # 29.
I.
On August 16, 2017, Tulsa Police Department (TPD) Officers Joshua Dupler, Anthony First,
and Kurt Dodd were attempting to arrest two suspects who had stolen a van, which was found in the
area near 4900 South Harvard Avenue in Tulsa, Oklahoma. Dkt. # 28, at 2. The officers arrested
one of the suspects, Antonio Luna, but the driver fled on foot into a nearby neighborhood. Id. at 3.
TPD officers set up a perimeter of the area, including a pasture and barn owned by Morris. Id. at 3.
Morris states that he uses the barn to stable his horses, including a gray horse that he had recently
purchased for roping competitions. Id. He claims that the presence of TPD officers spooked the
horse. Id. A neighbor called Morris and told him that his horse was acting frantically, and Morris
went to the barn to check on his horse. Id.
Morris alleges that TPD Officer Edmund Parrish arrived at a gas station several hundred
yards south of the barn and saw the fleeing suspect. Id. Parrish pursued the suspect past the barn
and into a parking lot, and Morris claims that Parrish did not see the suspect enter the barn. Id.
Morris claims that he arrived at the barn just behind First, and he drove past First up a street leading
to the barn. Id. Morris alleges that several TPD officers had already searched the barn before he
arrived. Id. Morris exited his vehicle, unlocked the gate, and proceeded to the barn to calm his
horse. Id, at 4. Dodd and First commanded Morris to step through the gate and leave the barn, and
Morris states that he complied with the order while explaining that he needed to calm his horse. Id.
TPD Officer Brent Williams brought a K-9 unit and searched the barn while Morris and First were
talking, and Williams announced that the barn was clear. Id.
Morris claims that he was standing outside the gate in compliance with an order from the
officers when First lunged at him. Id. First attempted to grab Morris’ shirt, but he slipped and fell.
Id. Morris turned and walked back toward the gate, and First deployed OC spray from about 10 to
15 feet away. Id. The OC spray hit Morris on the head and face, and First knocked Morris onto the
ground as Morris was attempting to wipe the spray out of his eyes. Id. at 5. Morris claims that he
was on his stomach yelling “I’m done” when Dodd jumped onto Morris’ back, fracturing Morris’
elbow. Id. First and perhaps another TPD officer were also on top of Morris while he continued to
yell “I’m done,” and Dupler jumped onto Morris’ back and began punching Morris in the face. Id.
Morris claims that the officers were already on notice that the suspect was not in the barn and they

were contacted by radio with information that the suspect was in a nearby parking lot under a car.
Id. at 5-6.
Morris was transported to a hospital, where he was treated for a laceration above his eye, a
fractured left elbow and two orbital fractures, a broken nose, and many bruises and contusions. Id.

at 6. After Morris was treated, he was transported to the Tulsa County Jail and booked on two
charges of felony assault and battery on a police officer and misdemeanor charges of resisting arrest
and obstructing a police officer. Id. The state of Oklahoma filed a criminal information charging
Morris with felony counts of assault and battery upon a police officer and assault on a police officer,
and misdemeanor counts of obstructing an officer and resisting an officer. Id. at 8. Morris
subsequently pled guilty to the misdemeanor charges, but he claims that he was not provided
exculpatory evidence concerning the validity of his arrest before he changed his plea. Id.

On August 14, 2018, Morris filed this case in Tulsa County District Court alleging state law
claims of assault and battery, negligence, and a claim for relief under 42 U.S.C. § 1983 based on the
use of excessive force by the police officers who arrested him. Dkt. # 2-1, at 9-20. Defendants
removed the case to this Court, and plaintiff sought leave to file an amended complaint. Dkt. # 26.
Plaintiff filed an amended complaint adding a claim under § 1983, alleging that he was unlawfully
arrested in violation of the Fourth Amendment. Dkt. # 28. Dupler, First, and Dodd have filed a
motion to dismiss the amended complaint on the grounds that they are entitled to qualified immunity
from plaintiff’s § 1983 claims and that plaintiff has failed to state a claim upon which relief can be

granted. Dkt. # 29.

3
Il.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine
whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face”
and the factual allegations “must be enough to raise a right to relief above the speculative level.”
Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided
within an antitrust context, Twombly “expounded the pleading standard for all civil actions.”
Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination,
court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact,
and must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at
555; Alvarado v, KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton
Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true
those allegations that are conclusory in nature. Erikson v, Pawnee Cnty. Bd. of Cnty. Comm’rs, 263
F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935
F.2d 1106, 1109-10 (10th Cir. 1991).
Ii.
Dupler, First, and Dodd argue that they are entitled to qualified immunity from plaintiff's §
1983 claims, because plaintiff cannot show that his constitutional rights were violated or that the law

supporting the alleged constitutional violations was clearly established. Dkt. # 29. Plaintiff responds
that defendants are improperly using a motion to dismiss to dispute the allegations contained in the
amended complaint, and that defendants are not entitled to qualified immunity based on the facts
alleged in the amended complaint. Dkt. # 37. Plaintiff has alleged two § 1983 claims against

Dupler, First, and Dodd. Plaintiff alleges that the defendants used excessive force to arrest him in
violation of the Fourth Amendment (third claim for relief), and that defendants unlawfully arrested
him having probable cause to believe that he had committed a crime (eighth claim for relief).
The Court will initially address whether it can consider evidence outside the pleadings in
ruling on the motion to dismiss. Defendants ask the Court to consider deposition testimony that
allegedly contradicts certain allegations of the amended complaint. Dkt. # 29, at 3. A district court
must ordinarily convert a motion to dismiss into a motion for summary judgment if the parties

request that the court consider evidence outside of the pleadings. GFF Corp. v. Assoc. Wholesale
Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). However, a district court may consider a
document that is referred to in the complaint and is central to plaintiff’s claims, even if a copy of the
document has not been attached to the complaint. Id. The Court declines to consider evidence
outside the pleadings in ruling on defendants’ motion to dismiss. Defendants have cited no
authority suggesting that deposition transcripts qualify as a “document,” and the Court finds that it
would be improper to allow defendants to rebut the allegations of the complaint with selective and
self-serving evidence. Cohen v. Lockwood, 2003 WL 21384313 (D. Kan. June 12, 2003) (declining

to consider deposition testimony because purpose of motion to dismiss is merely to test the
allegations of the complaint). The limited class of cases in which evidence outside the complaint
can be considered in ruling on a motion to dismiss typically involves a contract or insurance action
5
where the contents of the document are undisputed and the parties agree that the document is central
to resolution of the case. Deposition testimony would require an assessment of witness credibility
that could not be made by the Court even in ruling on a motion for summary judgment, and the Court
would be required to permit plaintiff to offer evidence to rebut the evidence offered by defendants.

The Court will consider only the allegations of the amended complaint in ruling on the motion to
dismiss.
A.
Section 1983 provides a cause of action against any “person who, under color of statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and law” of the United States. “The purpose of § 1983 is to deter state

actors from using the badge of authority to deprive individuals of their federally guaranteed rights
and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
The Supreme Court has held that “government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity shields public officials from
facing the burdens of litigation and is an immunity from suit, not simply a defense to a plaintiff’s
claims. Serna v. Colorado Dept. of Corrections, 455 F.3d 1146, 1150 (10th Cir. 2006). The Tenth

Circuit applies a two-step analysis to determine if a defendant is entitled to qualified immunity. A
plaintiff must show that the defendant’s actions violated a specific constitutional right and, if the
plaintiff has shown that a constitutional violation occurred, the plaintiff must show that the
6
constitutional right was clearly established when the conduct occurred. Toevs. v. Reid, 685 F.3d
903, 909 (10th Cir. 2012). Plaintiff bears the burden to prove that his constitutional rights were
violated and that the law giving rise to his claim was clearly established at the time the acts occurred.
Cox v. Glanz, 800 F.3d 1231, 1246 (10th Cir. 2015); Medina v. Cram, 252 F.3d 1124, 1128 (10th

Cir. 2001).
The Court will initially consider plaintiff’s claim that he was unlawfully arrested in violation
of the Fourth Amendment (eighth claim for relief). The Fourth Amendment protects the “right of
the people to be secure . . . against unreasonable searches and seizures . . . .” U.S. CONST. amend.
IV. In the context of a false arrest claim, “an arrestee’s constitutional rights were violated if the
arresting officer acted in the absence of probable cause that the person had committed a crime.”
Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). Probable cause exists when a police

officer has sufficient information “to warrant a prudent man in believing that the [suspect] had
committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). This is an
objective standard and a court must consider the totality of the circumstances to determine whether
a reasonable officer would have believed there was probable cause to make an arrest. Koch v. City
of Del City, 660 F.3d 1228, 1239 (10th Cir. 2011). Probable cause “is measured at the moment the
arrest occurs and must derive from facts and circumstances based on reasonably trustworthy
information.” Cortez v. McCauley, 478 F.3d 1108, 1121 (10th Cir. 2007). Once probable cause is
established, a police officer is not required to search for exculpatory evidence before arresting a

suspect. Id. A defendant is entitled to qualified immunity from a false arrest claim if there was
“arguable probable cause” to make an arrest. Kaufman, 697 F.3d at 1300. “Arguable probable cause
is another way of saying that the officers’ conclusions rest on an objectively reasonable, even if
7
mistaken, belief that probable cause exists.” Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir.
2014). “The proper inquiry in a § 1983 claim based on false arrest is not whether the person arrested
actually committed an offense, but whether the arresting officer had probable cause to believe that
he had.” Crawford ex. rel. Crawford v. Kansas City, Kansas, 952 F. Supp. 1467, 1474 (D. Kan.

1997) (citing Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)).
Both parties make general arguments concerning the validity of plaintiff’s arrest, but the
Court must focus on the actual charges for which plaintiff was arrested. Plaintiff will not be able
to show that his constitutional rights were violated if the facts alleged in his amended complaint
support a finding that officers had probable cause to arrest him for any crime on August 16, 2017.
Plaintiff alleges that he was arrested on two felony charges of assault and battery on a police officer
and misdemeanor charges of resisting arrest and obstructing an officer. Dkt. # 29, at 6. Plaintiff’s

§ 1983 claim for unlawful arrest will fail if defendants arguably had probable cause to arrest plaintiff
for any crime, even if the police officers were allegedly mistaken about certain facts. A.M. v.
Holmes, 830 F.3d 1123, 1139-40 (10th Cir. 2016) (qualified immunity determination is governed
by a standard or arguable probable cause, and officer will be entitled to qualified immunity even if
mistaken about the existence of actual probable cause).
Plaintiff alleges that TPD was investigating a vehicle theft and set up a perimeter that
included his pasture and barn, and TPD Officers Dupler and Barnhart were located down the street
from a gate leading to plaintiff’s barn. Dkt. # 28, at 3. Plaintiff claims that several officers searched

in and around the barn before he arrived and did not locate the suspect. Id. He arrived at his barn
and he observed Dodd come from the back side of the barn. Id. at 4. First arrived soon after Dodd,
and First commanded plaintiff to step through the gate and away from the barn. Id. Plaintiff claims
8
that he initially complied with First’s command and he attempted to explain that he needed to calm
his horse. Id. TPD Officer Williams searched the barn and announced that he did not find the
suspects. Id. However, plaintiff also alleges that he was engaged in a verbal altercation with First,
and he does not allege that he or First heard Williams’ announcement. Id. Plaintiff alleges that First

lunged at him in attempt to grab him by the shirt, but First lost his footing and fell. Id. Plaintiff
claims that he turned and walked toward the gate, and First deployed OC spray that struck plaintiff
on his head and face. Id. Plaintiff claims that he was booked on felony charges of assault and
battery on a police officer and misdemeanor charges of resisting arrest and obstructing an officer.
Id. at 6. There are no allegations suggesting that plaintiff was placed under arrest before First used
OC spray and knocked plaintiff to the ground.
Plaintiff’s argument that he was unlawfully arrested is based on his assertion that police had

no authority to exclude him from his own property and that police knew or should have known that
none of the suspects would be found in the barn. Dkt. # 37, at 5. However, he does not deny that
he was initially seized for failing to comply with an order issued by a police officer, and he plainly
alleges that he engaged in a verbal altercation with First and walked away from him after previously
being ordered to step away from the barn. Dkt. # 28, at 4. Under Oklahoma law, “[e]very person
who willfully delays or obstructs any public officer in the discharge or attempt to discharge any duty
of his office” is guilty of the misdemeanor offense of obstructing an officer. OKLA. STAT. tit. 21, §
540. It is also a misdemeanor offense to “knowingly resist[], by the use of force or violence, any

executive officer in the performance of his duty. OKLA. STAT. tit. 21, § 268. Based on the allegations
of the amended complaint, it is not clear that plaintiff could have been arrested for resisting arrest,

9
because § 268 requires the use of force or violence on the part of the accused.1 However, plaintiff
admits that he was involved in a verbal altercation with a police officer who was investigating a
crime, and he does not deny that he walked toward the gate after previously being ordered to leave
the barn. Dkt. # 28, at 4. Plaintiff was aware that police were looking for a suspect who could have

been hiding in the barn, and plaintiff’s actions were at a minimum distracting an officer involved in
an ongoing investigation. Based on these facts alone, plaintiff was arguably committing the
misdemeanor offense of obstructing a police officer in violation of § 540, and he has not adequately
alleged a constitutional violation under the Fourth Amendment for unlawful arrest without probable
cause.
Even if plaintiff could establish that his constitutional rights were violated, he also has the
burden to show that his constitutional rights were clearly established when the incident giving rise

to his arrest occurred. The Tenth Circuit has explained that law is clearly established if the contours
of a constitutional right are “sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Perry v. Durborow, 892 F.3d 1116, 1123 (10th Cir. 2018). The
contours of a right are generally “sufficiently clear” only if the plaintiff “identif[ies] an on-point
Supreme Court or published Tenth Circuit decision” or “shows ‘the clearly established weight of
authority from other courts [has] found the law to be as plaintiff maintains . . . .’” Id. District courts
have been cautioned not to define a constitutional right “at a high level of generality” but, instead,

1 For the same reason, the allegations of the amended complaint do not support an inference
that plaintiff committed an assault or battery on a police officer that could qualify as assault
or battery upon a police officer in violation of OKLA. STAT. tit. 21, § 649. However, this
does not prevent defendants from attempting to show in a motion for summary judgment that
plaintiff could have been arrested for the felony offense of assault and battery upon a police
officer, because this could affect the Court’s analysis as to plaintiff’s excessive force claim.
10
“the clearly established law must be ‘particularized’ to the facts of the case.” Id. To find that the
law is clearly established, the district court must “identify a case where an offic[ial] acting under
similar circumstances as [defendant]” was held to have violated the constitutional right at issue. Id.
at 1124. In the section of plaintiff’s response devoted to clearly established law, he focuses solely

on cases concerning the use of excessive force, and he does not cite any cases related to unlawful
arrest under the Fourth Amendment. Dkt. # 37, at 10-11. Plaintiff’s response cites general law
concerning the probable cause standard, but the Tenth Circuit has made held that such a high degree
of generality is not sufficient to show that law is clearly established. Defendants are entitled to
qualified immunity as to plaintiff’s unlawful arrest claim (eighth claim for relief), because plaintiff
has not met his burden to allege that a constitutional violation occurred or that the law supporting
any constitutional violation was clearly established.

Plaintiff has a separate claim under § 1983 for the use of excessive force during his arrest
(third claim for relief). The factual allegations concerning this claim are based on events that
occurred after plaintiff began walking toward his barn after initially avoiding First’s attempt to grab
him. Plaintiff claims that First deployed OC spray from a distance of about ten to fifteen feet, and
the spray struck plaintiff’s head and face. Dkt. # 28, at 4. First allegedly knocked plaintiff to the
ground, and plaintiff immediately told First “I’m done, I’m done.” Id. at 4-5. Plaintiff alleges that
Dodd “pounced onto his back and likely caused the fracture to [his] elbow.” Id. at 5. He claims that
First and Dodd were on top of him while he continued to yell “I’m done,” and Dupler also jumped

onto plaintiff and began punching him in the head. Id. Plaintiff claims that his arms and legs were
being pinned by other TPD officers and he was unable to wipe the OC spray off his face. Id.
Plaintiff claims Dupler, First, and Dodd continued to assault plaintiff even after being informed that
11
the robbery suspect was not on the premises. Id. at 6. Plaintiff was transported to a local hospital
and treated for a laceration above his eye, a fractured left elbow, two orbital bone fractures, a broken
nose, and multiple contusions or scrapes. Id.
Plaintiff alleges that police used excessive force to effect his arrest in violation of the Fourth

Amendment. Id. at 15. The Fourth Amendment governs claims concerning the use of force for a
warrantless arrest before a probable cause hearing has been held. Estate of Booker v. Gomez, 745
F.3d 405, 419 (10th Cir. 2014). In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court set
out the standards governing excessive force claims under the Fourth Amendment, and as a general
matter explained that the reasonableness of the force used requires a “balancing of ‘the nature and
quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.” Id. at 396. The reasonableness of the use of force “must be judged

from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight,”
and not “every push or shove . . . violates the Fourth Amendment.” Id. The Court must consider
factors such as 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.” Estate of Ceballos v. Husk, 919 F.3d 1204, 1213 (10th Cir. 2019). The
reasonableness inquiry is wholly objective and “an officer’s evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of force . . . .” McCoy v. Meyers, 887
F.3d 1034, 1045 (10th Cir. 2018). The use of force may become unreasonable, even if the use of

force is initially appropriate, if the person being detained is no longer a threat to the safety of police
officers. Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991).

12
Plaintiff devotes much of his response to the issue of whether police knew or should have
known that the robbery suspect was not in his barn. Dkt. # 37, at 4-6. The Court notes that the
presence or absence of the robbery suspect is irrelevant to whether police used reasonable force to
effect an arrest of plaintiff for a misdemeanor offense, and the focus of the Court’s inquiry is whether

the Graham factors suggest that the amount of force used was unreasonable. The Court has
determined that defendants arguably had probable cause to arrest plaintiff for a misdemeanor, and
the Court’s analysis as to excessive force must consider whether police used reasonable force to
arrest for the suspected misdemeanor offense.
Defendants offer little argument concerning the reasonableness of the force used to arrest
plaintiff, and the Court finds that the facts alleged in the amended complaint are sufficient to state
violation of plaintiff’s constitutional rights under the Fourth Amendment. Plaintiff does not dispute

that he walked away from First, but it is unclear from the facts alleged in the amended complaint
why First would have deployed OC spray on plaintiff and subsequently knocked him to the ground
without issuing any verbal commands to plaintiff. Due to the lack of clarity in the amended
complaint, the Court does not conclude that the use of force was excessive at this point in the
encounter. However, plaintiff alleges that he was shouting “I’m done” and offering no physical
resistance to police officers when he was on the ground, and First and Dodd jumped on his back and
broke his arm. Plaintiff claims that he continued to offer no resistance when a third officer, Dupler,
arrived and began punching him in the head when his arms were pinned underneath him. The

amended complaint contains no allegations that plaintiff was armed or that police believed that he
had any type of weapon, and there are no allegations suggesting that defendant posed a risk to officer
safety. The Court also takes into account that defendant was under arrest for a misdemeanor offense,
13
and the amount of force used was not commensurate with the severity of the offense. Plaintiff has
adequately alleged facts that would establish a violation of his constitutional right to be free from
excessive force during an arrest.
The Court must also consider whether the law giving rise to the constitutional violation is

clearly established. In the context of excessive force cases, “there will almost never be a previously
published opinion involving exactly the same circumstances” due to the fact-intensive nature of these
claims. Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Courts apply a
sliding scale to excessive force claims “in which ‘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.’” Easter v. Cramer, 785 F. App’x 602, 607 (10th Cir. Sep. 19, 2019) (quoting
Casey, 509 F.3d at 1284).2 In Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012), the Tenth Circuit

considered whether police could employ felony takedown procedures to arrest a suspect for a
misdemeanor offense when the suspect did not immediately pose a danger to any police officer. Id.
at 1196-97. Even though there was no case directly on point, the Tenth Circuit found that the
Graham factors weighed so heavily against the use of force that a reasonable police officer would
have understood that the amount of force used was not justified. Id. at 1197. For the purpose of
ruling on defendants’ motion to dismiss, the Court finds that plaintiff’s allegations support an
inference that the use of force was so egregious and unwarranted that no reasonable police officer
would have used a similar amount of force under the circumstances, and plaintiff’s constitutional

2 Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. 32.1: 10th Cir. R. 32.1.
14
rights were clearly established. Defendants’ request for qualified immunity as to plaintiff’s
excessive force claim is denied.
As to plaintiff’s § 1983 claims, defendants also argue that plaintiff has failed to state a claim
for a violation of his Fourth Amendment rights and that he has not alleged sufficient facts that would

support an award of punitive damages. The Court has determined that Dupler, First, and Dodd are
entitled to qualified immunity as to plaintiff’s unlawful arrest claim, but the Court has found that
they do not have qualified immunity as to plaintiff’s excessive force claim. The Court has reviewed
the motion to dismiss, and defendants’ argument concerning failure to state a § 1983 claim are
directed solely at the unlawful arrest claim. Dkt. # 29, at 14. This argument is moot based on the
Court’s decision to grant defendants’ qualified immunity on this claim. Defendants argue that
plaintiff has not alleged sufficient facts to warrant an award of punitive damages, because he has

done nothing more than make conclusory allegations against defendants. Dkt. # 29, at 15. To award
punitive damages under § 1983, a plaintiff must ultimately show that “the defendant’s conduct is
shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference
to the federally protected rights of others.” Burke v. Regalado, 935 F.3d 960, 1038 (10th Cir. 2019)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). The Court finds that it would premature to rule
out the availability of punitive damages in this case, because the Court’s inquiry is limited to the
allegations of the amended complaint. Plaintiff alleges that Dupler, First, and Dodd initiated the use
of force without any apparent provocation, and plaintiff claims that he suffered severe personal

injuries when all three officers held him down and beat him. Plaintiff’s allegations are not
conclusory and give defendants adequate notice of the factual basis for his request for punitive
damages.
15
B.
Dupler, First, and Dodd ask the Court to dismiss plaintiff’s state law claims of assault and
battery and negligence, and the Court will initially consider plaintiff’s negligence claim against the
individual defendants. The Oklahoma Supreme Court has addressed whether a police officer can

be held liable for negligence if he uses an unreasonable amount force to arrest a person. In Morales
v. City of Oklahoma City ex rel. Oklahoma City Police Department, 230 P.3d 869 (Okla. 2010), the
Oklahoma Supreme Court explained that a police officer “does not stand in the same shoes as an
ordinary citizen when it comes to using force against another person which exposes that person to
a risk of injury,” and a police officer using reasonable force to arrest a person is immune from the
torts of assault and battery. Id. at 879. However, a police officer has a duty to refrain from using
excessive force, and excessive force is defined as “physical force which exceeds the degree of

physical force permitted by law or the policies and guidelines of the law enforcement entity.” Id.
Force is often a necessary part of performing an arrest, but police must use “only such force in
making an arrest as a reasonably prudent police officer would use in light of the objective
circumstances confronting the officer at the time of the arrest.” Id. at 880. This is an objective
inquiry and a court should not consider a police officer’s mistake of fact or law or the police officer’s
good or bad faith, and the question is solely whether the police officer used an objectively reasonable
amount of force. Id. The Oklahoma Supreme Court provided the following factors to guide the
objective inquiry into the reasonableness of the force used in a particular situation:

(1) the severity of the crime of which the arrestee is suspected; (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 evade arrest; (4) the known
character of the arrestee; (5) the existence of alternative methods of accomplishing
16
the arrest; (6) the physical size, strength and weaponry of the officers compared to
those of the suspect; and (7) the exigency of the moment.
Id.
Applying the Morales factors, the Court finds that plaintiff has adequately alleged a
negligence claim against Dupler, First, and Dodd. Police did not suspect that plaintiff was
committing a violent offense and there are no allegations that he posed a risk of harm to police
officers present at the scene. Instead, defendants argue that plaintiff created a risk of harm to himself
by violating an order and police used force to move plaintiff to a “safe area.” Dkt. # 29, at 12.

Plaintiff claims that he was not resisting arrest after he was knocked to the ground and police
escalated the level of force after plaintiff advised police that he was “done.” Dkt. # 28, at 5. There
are no allegations that police had prior knowledge about defendant or had any reason to believe that
he was armed or possibly dangerous. Plaintiff alleges that three police officers used a significant
amount of force to arrest him and caused him serious personal injury, even though police should
have known that the robbery suspect was not present in the barn and that plaintiff was entering the
barn only for the purpose of calming his agitated horse. The allegations of the amended complaint

do not suggest that there were any exigent circumstances that required police to use force to effect
plaintiff’s immediate arrest. Plaintiff’s allegations suggest that he was unhappy about the presence
of officers on his property but he does not allege that he engaged in any violent behavior towards the
police officers, and his allegations at least give rise to a factual dispute whether the amount of force
used to arrest him was reasonable under the circumstances.
Plaintiff has also alleged state law claims for assault and battery against Dupler, First, and
Dodd. Oklahoma follows the Restatement of Torts (Second) to define the torts of assault and battery

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and, even though plaintiff has pled a single claim, assault and battery are distinct acts. See Brown
v. Ford, 905 P.2d 223 n.34 (1995) (overruled on other grounds). A person is liable for assault if he
“acts intending to cause a harmful or offensive contact with the person of the other or a third person,
or an imminent apprehension of such a contact” and “the other is thereby put in such imminent

apprehension.” RESTATEMENT (SECOND) OF TORTS § 21. To commit battery, a person must “act[]
intending to cause a harmful or offensive contact with the person of the other or a third person, or
an imminent apprehension of such a contact” and “a harmful contact with the person of the other
directly or indirectly results.” RESTATEMENT (SECOND) OF TORTS § 13. The Court has already
determined that plaintiff’s allegations are sufficient to show that the officer had probable cause to
arrest plaintiff and, under Oklahoma law, the use of force against another person is not unlawful
“[w]hen necessarily committed by a public officer in the performance of any legal duty . . . .” OKLA.

STAT. tit. 21, § 643(1). However, even a police officer can commit the torts of assault and battery
if the force used is excessive or unreasonable. Payne v. Myers, 2015 WL 5775188 (N.D. Okla. Sep.
30, 2015); Thetford v. Hoehner, 2006 WL 964754, *6 (N.D. Okla. Apr. 12, 2006). The Court has
determined that plaintiff’s allegations are sufficient to state a claim that excessive force was used to
arrest him in violation of the Fourth Amendment and, for the same reasons, finds that plaintiff has
adequately alleged a tort claim for assault and battery based on the allegedly excessive force used
to arrest him.
IT IS THEREFORE ORDERED that Defendants Joshua Dupler, Anthony First, and Kurt

Dodd’s Motion to Dismiss Plaintiff’s First Amended Complaint (Dkt. # 29) is granted in part and
denied in part: defendants are entitled to qualified immunity as to plaintiff’s claim for unlawful

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arrest (eighth claim for relief), but the motion to dismiss is denied in all other respects. The eighth
claim for relief is dismissed.
DATED this 31st day of December, 2019.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10386419. Public record. Not legal advice.