# Knight v. State of Oklahoma

> District Court, N.D. Oklahoma · February 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10387139

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** February 1, 2023
- **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

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387139. Public record. Not legal advice.