Krueger v. Wagoner County Board of County Commissioners

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. Plaintiffs bring claims against Sheriff Elliott in his official

capacity. The court previously granted in part and denied in part the motion for summary

judgment filed by Sheriff Elliott.

Now before the court are Sheriff Elliott’s motion pursuant to Fed. R. Civ. P. 59(e) to

reconsider and alter or amend the portion of the court’s Order denying his summary judgment

motion as to the 42 U.S.C. § 1983 claims of unconstitutional policies or customs in the form of

ratification of the use of excessive force [Docket No. 370], Plaintiffs’ response [Docket No.

376], and Sheriff Elliott’s reply [Docket 380].

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)).

Sheriff Elliott does not assert that there has been an intervening change in the controlling

law or that there is new evidence previously unavailable. Instead, he argues that there is a need

to correct clear error or prevent manifest injustice. Specifically, Sheriff Elliott argues that the

court misapprehended the controlling law with regard to the theory of ratification.

After Mr. Krueger died on July 1, 2019, Sheriff Elliott awarded medals of valor to

Deputies Phillips and Orr for their actions taken on that day. In fact, he signed the nomination

for the award for Deputy Phillips on the same day – July 1, 2019.

When an official's discretionary decisions are constrained by policies not of that official's

making, those policies, rather than the subordinate's departures from them, are the act of

the municipality. Similarly, when a subordinate's decision is subject to review by the

municipality's authorized policymakers, they have retained the authority to measure the

official's conduct for conformance with their policies. If the authorized policymakers

approve a subordinate's decision and the basis for it, their ratification would be

chargeable to the municipality because their decision is final.

City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). “The final policymaker must not only

approve the decision, but also adopt the basis for the decision, and the ratification must be the

moving force, or cause, of the alleged constitutional violation.” Dempsey v. City of Baldwin, 143

F. App'x 976, 986 (10th Cir. 2005) (citing Paprotnik, 480 U.S. at 127, 107 S.Ct. 1038).

Sheriff Elliott argues that because the ratification must be the moving force or cause of

the violation, it must necessarily be taken prior to the alleged violation. In its order denying

summary judgment, the court cited a portion of a footnote from a Western District of Oklahoma

case recognizing the disagreement among the circuits regarding whether ratifying acts must be

taken prior to an alleged violation. The court includes the entire footnote here:

The Court acknowledges that there is some disagreement among the circuits regarding

the ratification theory and some conflict between the ratification theory and the causation

requirement as outlined in Monell, 436 U.S. at 691, 694. There appears to be no dispute

when the authorized policymaker ratifies the subordinate’s decision and the basis for it

prior to, or contemporaneously with, the constitutional deprivation. The dispute arises

when ratification occurs after the constitutional harm has been inflicted. Compare Au

Hoon v. City of Honolulu, 922 F.2d 844 *4 (9th Cir. 1991)(unpublished)(not correct to

say that only actions approved in advance are ratified for purposes of imposing municipal

liability) with Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th Cir. 1993)(even if

municipality subsequently ratified decision, plaintiffs would have to prove that

ratification was a moving force in causing constitutional violation).

Coffee v. City of Oklahoma City, Oklahoma, No. CIV-08-239-W, 2009 WL 10669175, at *5,

n.11 (W.D. Okla. Aug. 4, 2009).

The ratification here occurred almost immediately after the alleged violation. Of course,

at trial, Plaintiffs must prove that the ratification was the moving force in causing the violation,

but as the court previously determined, Sheriff Elliott is not entitled to summary judgment.

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 Sheriff Elliott may have stated his argument better in his

motion to reconsider, he is improperly using the motion to reconsider to ask the court to rethink

what it has already thought through – rightly or wrongly. Sheriff Elliott’s motion to reconsider

and alter or amend the portion of the court’s Order denying his summary judgment motion as to

the 42 U.S.C. § 1983 claims of unconstitutional policies or customs in the form of ratification of

the use of excessive force [Docket No. 370] 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