Knight v. State of Oklahoma

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

THOMAS KNIGHT, )

)

Plaintiff, )

)

v. )

)

STATE OF OKLAHOMA ex rel. )

OKLAHOMA DEPARTMENT OF PUBLIC )

SAFETY, a Public Agency of the State of ) Case No. 22-CV-69-TCK-SH

Oklahoma, et al., )

)

Defendants. )

OPINION AND ORDER

This case arises from a Black Lives Matter rally in Tulsa, Oklahoma on May 31, 2020

(Rally). One of the rallygoers, Plaintiff Thomas Knight (Plaintiff), sustained injuries when a truck

passed through a barricade during the event, causing Plaintiff to fall from a highway overpass and

resulting in his paralysis. Plaintiff filed his Amended Complaint (Complaint) on April 28, 2022,

asserting five claims for relief against more than 30 defendants. (Doc. 26). Three of the defendants,

namely State of Oklahoma, ex rel. Oklahoma Department of Public Safety (DPS); John Scully

(Scully), and Brent Sugg (Sugg) (collectively, State Defendants), have moved to dismiss the claims

against them, asserting sovereign immunity, qualified immunity, and failure to state a claim for

which relief may be granted under Fed. R. Civ. P. 12(b)(6). (Doc. 29). In addition to the State

Defendants’ motion to dismiss, Defendant Ramona Trailer & Ranch Equipment, LLC (Ramona

Trailer) also moved to dismiss Plaintiff’s claims against it under Fed. R. Civ. P. 12(b)(6). (Doc.

46). Plaintiff filed a response to State Defendants’ motion, (Doc. 33), to which State Defendants

replied, (Doc. 51). Plaintiff also filed a response to Ramona Trailer’s motion, (Doc. 52), and

Ramona Trailer did not file a reply.

I. BACKGROUND

According to the Complaint, on May 31, 2020, several thousand people gathered in Tulsa,

Oklahoma to protest the death of George Floyd1 and the relationship between African American

citizens and law enforcement writ large (Rally). (Doc. 26 at ¶¶ 1-3, 41). The Complaint suggests

that the Rally was initially conceived on May 27, 2020, when a local activist created a Facebook

event titled, “BLACK LIVES MATTER RALLY.” (Id. at ¶ 35). The Rally was scheduled to begin

at 5:00 p.m. on May 31 with a number of speeches from community members, followed by a march

that would proceed through downtown Tulsa. (Id. at ¶¶ 35-36). Over the course of four days

between the Rally’s conception and commencement, the Complaint alleges that Rally organizers

met with the Tulsa Police Department (TPD) to plan the march route and event logistics—though,

apparently the march route was not finalized until moments before the Rally was scheduled to

begin, and Rally attendees were not provided with information regarding the route in advance of

the event. (Id. at ¶¶ 37-40, 42).

The Rally commenced as planned on May 31, and after the speeches concluded, rallygoers

began to march toward John Hope Franklin Reconciliation Park, which is located in downtown

Tulsa and is adjacent to Interstate 244 (I-244). As the rallygoers began to congregate at the park,

the size of the crowd outpaced the size of the available space in the park and was pushed closer to

I-244. The Complaint states that TPD “funneled . . . people on and near the [I-244] embankment”

as they arrived at the park. (Id. at ¶¶ 48). The Complaint further alleges that, as the Oklahoma

Highway Patrol (OHP) halted westbound I-244 traffic, TPD officers began directing rallygoers to

ascend the I-244 access ramp near the park, and soon, hundreds of Rally attendees began pouring

1 As the Complaint notes, George Floyd was an African American male who died on May 25,

2020, after a Minneapolis police officer knelt on his neck. His death precipitated numerous protests

throughout the United States. (Doc. 26 at ¶¶ 1-2).

onto I-244. (Id. at 48-49, 51). The Complaint asserts that Plaintiff was among those in the crowd

directed to ascend the I-244 access ramp. (Id. at 50).

Despite having successfully stopped westbound I-244 traffic, the Complaint alleges that

OHP troopers nevertheless allowed a truck driven by Defendant Keith Sumner (Sumner) to drive

through the barricade. (Id. ¶ 54). Witnesses at the scene described Sumner brandishing a firearm

and bumping rallygoers with his truck as he made his way through the crowd on the interstate,

eventually driving over people in the crowd. (Id. at ¶¶ 54-55). There was no egress on the interstate

for the crowd to make way for Sumner’s truck when he drove past the barricade, causing panicked

rallygoers to push back and make way for Sumner’s truck. Consequently, Plaintiff—who was

standing away from the truck’s path on an I-244 overpass at the time—was pushed over the edge

of the overpass and onto the ground below. (Id. at ¶¶ 57-58). Plaintiff’s fall from the overpass

resulted in paraplegia, and despite intensive rehabilitation efforts, his condition is likely

permanent. (Id. at ¶¶ 62-63).

Plaintiff now brings suit against State Defendants, Ramona Trailer, and 35 other defendants

for the injuries he suffered as a result of the fall. Of relevance, Plaintiff charges DPS with liability

for his injuries under a respondeat superior theory of negligence, imputing the agency with the

alleged negligence of multiple OHP Troopers. (Id. at ¶¶ 119–29). In addition to the negligence

claim against DPS, Plaintiff asserts supervisory liability claims against Scully and Sugg under 42

U.S.C. § 1983 for violations of Plaintiff’s Fourteenth Amendment substantive due process rights.

(Id. at ¶¶ 181-86). Specifically, Plaintiff alleges that, as Commissioner of Oklahoma DPS, Scully

is statutorily responsible for supervising and administering OHP, among which includes

determining qualifications to be an OHP trooper and ensuring that troopers are properly trained

and suitable for the employment demands. (Id. at ¶ 16). Further, Plaintiff maintains that Sugg, as

OHP Chief of Patrol, was responsible for promulgating, implementing, and ensuring compliance

with policies regarding crowd and traffic control. (Id. at ¶ 17). Premised on these facts, Plaintiff

asserts that Sugg and Scully, as final policymakers for OHP, failed to establish constitutionally

adequate crowd and traffic control policies, the consequences of which was the creation of a

dangerous situation to persons such as Plaintiff. (Id. at ¶ 182). Accordingly, Plaintiff concludes,

Sugg and Scully permitted or acquiesced to a custom of constitutional deprivations with respect to

the creation of dangerous situations and were deliberately indifferent to the consequences of such

policy failures. (Id. at ¶ 183).

With respect to Ramona Trailer, the Complaint alleges is owned and operated by the

Sumner family. Further, Plaintiff contends that, at the time Sumner drove through the crowd, he

was hauling a horse trailer owned by Ramona Trailer. (Id. at 27). To that end, Plaintiff asserts a

negligent entrustment claim against Ramona Trailer.

State Defendants filed a motion to dismiss, raising several challenges to the Complaint,

namely: 1) sovereign immunity for DPS and for official capacity claims against Sugg and Scully

under the Eleventh Amendment of the United States Constitution; 2) qualified immunity for Sugg

and Scully with respect to the Fourteenth Amendment supervisory liability claim; 3) failure to state

a claim for supervisory liability against Sugg and Scully; and 4) DPS immunity under the

Oklahoma Government Tort Claim Act (OGTCA). (Doc. 29). Ramona Trailer premises its motion

to dismiss on the fact that it was not organized as an Oklahoma limited liability corporation until

nearly four months after May 31, 2020, and thus, Ramona Trailer cannot be held legally liable for

negligent entrustment. (Doc. 46). In response to the motions to dismiss, Plaintiff states that the

Complaint does not assert § 1983 claims against State of Oklahoma or against Scully and Sugg in

their official capacity, and thus, State Defendants’ motion to dismiss based on sovereign immunity

is DENIED as MOOT. Plaintiff disputes all other issues raised in the motions to dismiss. The

Court now turns to those contested issues.

II. LEGAL STANDARDS

“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the

parties might present at trial, but to assess whether the plaintiff’s . . . complaint alone is legally

sufficient to state a claim for which relief may be granted.” Brokers’ Choice of Am., Inc. v. NBC

Universal, Inc., 757 F.3d 1125, 1135 (10th Cir. 2014) (internal citations omitted). A complaint is

legally sufficient only if it contains factual allegations such that it states a claim to relief that “is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,

a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

Id. at 555 (internal citations omitted) (alteration original). Instead, “[a] claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

This plausibility standard “asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. For the purpose of making the dismissal determination, a court must accept all the

well-pleaded factual allegations of the complaint as true, even if doubtful, and must construe the

allegations in the light most favorable to the plaintiff. See Twombly, 550 U.S. at 555; Alvarado v.

KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

III. DISCUSSION

A. SUGG AND SCULLY QUALIFIED IMMUNITY

As a general rule, when government officials are sued for performing discretionary

functions, courts recognize the affirmative defense of qualified immunity, which protects “all but

the plainly incompetent or those who knowingly violate the law,” shielding them from civil

liability. See Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citing Malley v. Briggs, 475 U.S.

335, 341 (1986)); see also City of Tahlequah v. Bond, 142 S. Ct. 9, 10 (2021). Once a defendant

raises qualified immunity, “the plaintiff initially bears a heavy two-part burden.” See Albright v.

Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (citing Hannula v. City of Lakewood, 907 F.2d

129, 130-31 (10th Cir. 1990)). First, the plaintiff must demonstrate that the defendant’s actions

violated a constitutional right. Then, the plaintiff must show that the constitutional rights the

defendant allegedly violated were clearly established at the time of the conduct at issue. Id. If the

plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant

qualified immunity. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). However, courts

have discretion to determine “which of the two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan,

555 U.S. 223, 236 (2009). Here, the Court finds that addressing only the second prong of the

qualified immunity inquiry is necessary to decide State Defendants’ motion to dismiss with respect

to Plaintiff’s supervisory liability claim. Est. of Reat v. Rodriguez, 824 F.3d 960, 9645 (10th Cir.

2016) (courts may exercise their discretion in determining which prong to address first when it

“can more readily decide the law was not clearly established before reaching the more difficult

question of whether there has been a constitutional violation”).

A right is “clearly established” under the second prong of the qualified immunity analysis

when the “contours of a right are sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)

(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987))

(alterations and internal quotations marks omitted). While the inquiry “does not require a case

directly on point for a right to be clearly established, existing precedent must have placed the

statutory or constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (quoting White v. Pauly, 580 U.S. 73, 78-79 (2017)). The Supreme Court has further

elaborated that the clearly established law must be “particularized” to the facts of the case and not

defined at a “high level of generality.” White, 580 U.S. at 79.

Plaintiff argues that Sugg and Scully are not entitled to qualified immunity because the law

regarding both supervisory liability and state-created danger was clearly established before May

2020. (Doc. 33 at 16-18). Of all of the cases cited by Plaintiff, the only one that roughly

approximates to the specific facts at hand is Hernandez v. City of San Jose, in which the Ninth

Circuit held that officers who shepherded rally attendees into a crowd of violent protesters were

not entitled to qualified immunity under the state-created danger doctrine. 897 F.3d 1125, 1138-

39 (9th Cir. 2018). Notably, the operative claim considered by the Hernandez Court was not related

to the crowd-control planning; rather, it was related to the officers who “continued to implement

[the crowd-control] plan even while witnessing the violence firsthand.”2 Id. at 1138. Given that

Plaintiff seeks to impose supervisory liability for crowd-control planning under the state-created

2 The Court notes that the Hernandez plaintiffs’ claim related to the crowd-control planning was

dismissed by the district court, which found that the officers “were not liable for their planning

efforts before the [r]ally began.” 897 F.3d at 1131. The dismissal of the crowd-control planning

claim was not on appeal and, therefore, was not discussed further in the opinion.

danger doctrine, Hernandez is inapposite as it relates to Plaintiff’s allegations against Sugg and

Scully. In short, Plaintiff’s “clearly established” analysis merely oscillates between citations to

supervisory liability cases and state-created danger cases, and in so doing, Plaintiff fails to present

a case that bears any meaningful resemblance to his claims against Sugg and Scully.

Even if the Court were to accept Plaintiff’s highly abstracted analysis regarding the law of

supervisory liability in the context of crowd-control planning, it must also countenance Plaintiff’s

self-serving and conclusory—if not outright fanciful—assertion that Sugg and Scully promulgated

a policy in which OHP troopers were “permitted to allow vehicles to pass through traffic barricades

into a crowd of people congregated on a highway.” (Doc. 33 at 17). The Court declines to do so

here. Accordingly, the Court finds that Sugg and Scully are entitled to qualified immunity with

respect to Plaintiff’s § 1983 supervisory liability claim.

B. STATE DEFENDANTS’ IMMUNITY UNDER THE OGTCA

Under the OGTCA, the state waives sovereign immunity from suit, subject to a limited

number of “narrowly construed” exceptions. Okla. Stat tit. 51, §§ 152.1, 155; Reeves v. City of

Durant, 2019 OK CIV APP 12, ¶ 12, 435 P.3d 140, 142. State Defendants challenge Plaintiff’s

negligence claim based on two such exceptions under § 155(6), namely, injury resulting from civil

disobedience and injury resulting from method of law enforcement protection. (Doc. 29 at 13-17).

In particular, State Defendants argue that the manner in which Rally attendees walked on the

interstate during the rush-hour is unlawful in Oklahoma and, thus, should be construed as civil

disobedience within the meaning of the OGTCA statutory exception. (Id. at 14-15). Defendants

further contend that the OHP troopers were engaged in “protective services”—as opposed to “law

enforcement”—at the time of the Rally, which entitles the state to immunity from Plaintiff’s

negligence claim pursuant to § 155(6). (Id. at 15-17).

Ordinarily, this Court defers questions of OGTCA immunity at the motion to dismiss stage

of litigation, given the fact-intensive nature of the inquiry. See Brodrick v. Washington Cnty. Bd.

of Cnty. Commissioners, 2023 WL 113723, at *2 (N.D. Okla. Jan. 5, 2023); Myers v. Bd. of Cnty.

Commissioners of Rogers Cnty., 2023 WL 171773, at *3 (N.D. Okla. Jan. 12, 2023). The Court

sees no reason to depart from that rule here. The Complaint alleges that rallygoers were shepherded

onto the interstate embankment and access ramp, in an effort to accommodate the overwhelming

crowd size and limited amount of space at which the Rally took place. The crowd eventually

poured over to the westbound lanes of the interstate. (Doc. ¶ 4). Without a complete evidentiary

record to evaluate, the Court is not prepared to decide whether that constitutes “civil disobedience”

within the narrowly construed meaning of the OGTCA exception. Similarly, without further

factual development, the Court is not able to determine whether OHP troopers were engaged in

“protective services” or “law enforcement” at the time of the Rally, and thus, the Court cannot

decide whether the second prong of State Defendants’ OGTCA immunity claim applies.

Accordingly, the Court DENIES State Defendants’ motion to dismiss on the issue of OGTCA

immunity.

C. RAMONA TRAILER’S EXISTENCE ON MAY 31, 2020

Ramona Trailer moves to dismiss Plaintiff’s negligent entrustment claim against it,

contending that it was not in existence at the time of Sumner’s allegedly tortious conduct. (Doc.

46). Ramona Trailer urges the Court to take judicial notice of its articles of incorporation filed with

the Oklahoma Secretary of State, observing that Ramona Trailer, L.L.C., was not organized as an

Oklahoma limited liability corporation until September 2020—several months after the events

giving rise to the Complaint. (Id. at 4). Because it was not organized when the events giving rise

to the Complaint took place, Ramona Trailer argues, it cannot be liable for Plaintiffs injuries that

occurred before it existed. (/d.)

Even if the Court were to take judicial notice of Ramona Trailer’s date of organization, it

would hardly put to rest the issue of liability. See e.g., Indus. Bldg. & Loan Ass’n v. Williams, 1928

OK 376, 268 P. 228, 231 (“A... de facto [corporation] may legally do and perform every act and

thing which the same entity could do or perform were it a de jure corporation.”); Jones v. Eppler,

1953 OK 363, 266 P.2d 451, 458 (“[T]ort liability of an individual, partnership or corporation . . .

may be enforced against a [successor] corporation which takes over the business and assets of its

predecessor.”). Plaintiff's response underscores both de facto and successor corporation theories

of liability, offering evidence from Ramona Trailer’s website that shows it was established in 2019.

(Docs. 52 at 6-10; 52-1). Both the de facto and the successor corporation inquiries are fact specific

and not suitable to decide on a motion to dismiss, and this Court does not have sufficient evidence

to decide the issue at this time. Accordingly, Ramona Trailer’s motion to dismiss (Doc. 46) is

DENIED.

IV. CONCLUSION

State Defendants’ motion to dismiss (Doc. 29) is GRANTED in part and DENIED in part.

Specifically, the Court GRANTS State Defendants’ motion with respect to the § 1983 supervisory

liability claim against Defendants Brent Sugg and John Scully, finding that both are entitled to

qualified immunity for that claim. The Court DENIES the remainder of State Defendants’ motion

to dismiss. Additionally, Defendant Ramona Trailer’s motion to dismiss (Doc. 46) is DENIED.

SO ORDERED this 1* day of February 2023.

——__>

TERENCE C, KERN

United States District Judge

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