The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOHN KRUEGER, individually and as Co-
Administrator of the Estate of Jeffery Krueger,
et al.,
Plaintiffs,
v. Case No. CIV-21-044-RAW
SHERIFF CHRIS ELLIOTT, in his official
capacity as Sheriff of Wagoner County, et al.,
Defendants.
ORDER
This action arises from the death of Jeffrey Krueger on July 1, 2019. Plaintiffs allege that
the individual defendants beat, tased, cuffed, and ultimately caused him to suffer positional
asphyxiation resulting in his death. The court previously granted in part and denied in part the
motion for summary judgment filed by Lieutenant Elizabeth Crockett (“Lt. Crockett”). Now
before the court are Lt. Crockett’s motion pursuant to Fed. R. Civ. P. 59(e) to reconsider and
alter or amend the portion of the court’s Order denying her summary judgment motion as to the
42 U.S.C. § 1983 excessive force and failure to intervene claims [Docket No. 371], Plaintiffs’
response [Docket No. 381], and Lt. Crockett’s reply [Docket 382].
The Tenth Circuit has stated that a motion to reconsider is warranted where there is “(1)
an intervening change in the controlling law, (2) new evidence previously unavailable, and (3)
the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). Under the third prong, relief is appropriate pursuant to Rule
59(e) only where “the court has misapprehended the facts, the party’s position, or the controlling
law.” Barber ex rel. Barber v. Colorado Dept. of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009)
(quoting Servants of Paraclete, 204 F.3d at 1012).
A motion for reconsideration “is not appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior briefing.” Servants of Paraclete, 204
F.3d at 1012. A Rule 59(e) motion “is designed to permit relief in extraordinary circumstances
and not to offer a second bite at the proverbial apple.” United States v. Springer, No. 08-CV-
278-TCK-PJC, 2020 WL 983084, at *1 (N.D. Okla. Jan. 28, 2020) (quoting Syntroleum Corp. v.
Fletcher Int’l, Ltd., No. 08-CV-384-JHP-FHM, 2009 WL 761322, at *1 (N.D. Okla. Mar. 19,
2009)).
Lt. Crockett does not assert that there has been an intervening change in the controlling
law or that there is new evidence previously unavailable. Instead, she argues that there is a need
to correct clear error or prevent manifest injustice.
First, as to the failure to intervene claim, she reasserts her argument that Plaintiffs did not
include the claim in their Fourth Amended Complaint. She argues that denial of summary
judgment on this issue, therefore, is erroneous and constitutes a manifest injustice. The court
addressed this argument in its order when it stated, “while it is not abundantly clear in the Fourth
Amended Complaint, Plaintiffs arguably also brought claims against the County Defendants for
failure to intervene to stop other law enforcement officers from using excessive force against Mr.
Krueger.” Docket No. 363, at 17. The court then found that Lt. Crockett was not entitled to
qualified immunity on the claim and denied summary judgment. The motion to reconsider this
argument is not appropriate. As the court noted in the oft-cited Above the Belt, Inc. v. Mel
Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983), while Lt. Crockett may have stated
her argument better in her motion to reconsider, she is improperly using the motion to reconsider
to ask the court to rethink what it has already thought through – rightly or wrongly. Her motion
is denied as to the failure to intervene claim.
Second, Lt. Crockett argues that the court erred in finding that she was not entitled to
qualified immunity on the excessive force claim because she did not place any significant
amount of pressure on Mr. Krueger’s upper back for any period of time. The court stated in its
Order:
In Estate of Booker, the Tenth Circuit reiterated: “In Weigel, we agreed with other
circuits that it was ‘clearly established that putting substantial or significant pressure on a
suspect’s back while that suspect is in a face-down prone position after being subdued
an/or incapacitated constitutes excessive force.
Docket No. 363, at 23-24 (citing Estate of Booker, 745 F.3d 405, 424 (10th Cir. 2014)). Lt.
Crockett refers to this portion of the court’s Order, adding the word “upper.” Docket No. 371, at
6-7. The court has double checked, and the word “upper” is not in the Estate of Booker citation.
As the court previously found, Lt. Crockett knelt on Mr. Krueger’s left buttock and left
upper thigh for approximately forty-five seconds to a minute while he was handcuffed and in a
prone position on his stomach, until he had been placed in leg irons. She did this while other
officers placed considerable weight, easily exceeding Mr. Krueger’s body weight, on Mr.
Krueger’s upper back. To argue that the weight she placed on his buttock and upper thigh would
not add to the pressure on his back and contribute to the alleged positional asphyxiation resulting
in his death is, at best, disingenuous.
Moreover, despite Lt. Crockett’s argument to the contrary, this is an individual
assessment of her alleged contribution to Mr. Krueger’s injuries. Lt. Crockett jointly
participated, albeit briefly, in the placement of pressure on Mr. Krueger’s back while he was in a
prone position on his stomach. Again, Lt. Crockett is improperly using a motion to reconsider to
ask the court to rethink what it has already thought through. Her motion is denied as to the
excessive force claim.
Lt. Crockett’s motion to reconsider and alter or amend the portion of its Order denying
her summary judgment motion as to the 42 U.S.C. § 1983 excessive force and failure to
intervene claims [Docket No. 371] is hereby DENIED.
IT IS SO ORDERED this 24th day of July, 2024.
______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA