The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SHAKAYLA DAVIS, as Personal Representative )
of the Estate of RICKY DAVIS, deceased, )
)
Plaintiff, )
)
v. ) Case No. 22-CV-320-DES
)
CITY OF MUSKOGEE, OKLAHOMA; )
ROBERT “BOB” LYNCH; )
and JEREMY JENKINS, )
)
Defendants. )
OPINION AND ORDER
This matter comes before the Court on Defendant City of Muskogee’s (“Defendant” or
“the City”) Motion for Summary Judgment and Brief in Support (Docket No. 43). On April 10,
2025, a Hearing on this Motion was held in which both counsel for Plaintiff and Defendant were
given the opportunity to present oral argument. For the reasons set forth below, Defendant’s
Motion for Summary Judgment is GRANTED.
I. Background
Plaintiff’s allegations stem from an incident where Ricky Davis (“Mr. Davis”), following
a call to him accusing his minor daughter, Shalayna Davis, of stealing money and threatening
imminent harm to her, drove to his daughter’s location, called 9-1-1, and told the dispatcher that
two women were assaulting his daughter. (Docket No. 2 at 4). Plaintiff alleges that when Mr. Davis
arrived at the scene, his daughter was running down the street and got into his car. Id. at 5. Although
Mr. Davis initially drove away, he returned to the scene to retrieve his daughter’s purse and phone.
Id. It was upon this return that Plaintiff alleges the same individuals who assaulted Mr. Davis’s
daughter began assaulting Mr. Davis and threatened to kill him and his family. Id. Plaintiff alleges
Mr. Davis had a concealed carry license, was carrying a firearm, and loudly told these individuals
that he had a gun and warned them to get back. Id. It was at this point that Officer Robert Lynch
(“Officer Lynch”) from Muskogee Police Department arrived1 and told Mr. Davis to “drop the
gun!”, which Mr. Davis did. Id. Officer Lynch then told Mr. Davis to “get on the ground!” Id.
Plaintiff alleges, this order to “get on the ground” caused Mr. Davis to pause. In September
2017, Plaintiff alleges Mr. Davis underwent a kidney transplant procedure that required extended
hospitalization. Id. at 3. In October 2017, Plaintiff further alleges Mr. Davis was injured in a car
accident that caused a kidney infection and required another surgery. Id. Plaintiff alleges, due to
his “history of dialysis, injections and IVs in his left forearm” an AV fistula and shunt was placed
in Mr. Davis’s forearm in March 2018. Id at 4. Once Officer Lynch ordered Mr. Davis to “get on
the ground,” Plaintiff alleges Mr. Davis said he could not get on the ground “due to his kidney
transplant,” to which Officer Lynch responded he did not care and repeated his command for Mr.
Davis to get on the ground. Id. at 5-6. Plaintiff alleges Mr. Davis was fearful of being shot so he
got on the ground. Id. at 6. At this point, Sergeant Jenkins arrived on the scene and he and Officer
Lynch proceeded to handcuff Mr. Davis. Id. Plaintiff alleges Mr. Davis told the officers that he
could not have his left arm cuffed behind his back because it was restricted with medical devices
and because he had a kidney transplant. Id. Plaintiff alleges Sergeant Jenkins placed Mr. Davis
inside a squad car with his arms cuffed behind his back, which caused more pain and pressure on
the AV fistula and shunt. Id. at 7. Plaintiff alleges Mr. Davis had difficulty breathing because the
squad car had no air conditioning. Id. After approximately forty-five (45) minutes, Plaintiff alleges
Mr. Davis was allowed to get out of the squad car and his handcuffs were removed. Id. Plaintiff
alleges Mr. Davis’s AV fistula was “visibly swollen, disfigured and protruding from his arm” and
1 Plaintiff disputes that Mr. Davis was pointing or waiving his gun at anyone on the scene, however, the body camera
footage shows Mr. Davis was waiving his gun around as Officer Lynch arrived on the scene.
that an EMT spoke to Mr. Davis about his medical history and looked at his left arm. Id. Plaintiff
alleges Mr. Davis returned home but presented to the hospital later that evening due to arm
swelling and significant pain. Id. It was later determined that the AV fistula in his left arm had
“burst . . . . requiring[ing] additional invasive surgical intervention to repair the damaged fistula
and further hospitalization.” Id.
Plaintiff, Shakayla Davis, daughter of Mr. Davis and Personal Representative of the Estate
of Ricky Davis, filed this action on November 15, 2022 alleging: (1) excessive use of force in
violation of the Fourth and/or Fourteenth Amendment and 42 U.S.C. § 1983 against all
Defendants, (2) negligence against Defendant City of Muskogee, (3) violation of the Americans
with Disabilities Act (“ADA”) against all Defendants, and (4) deliberate indifference to a serious
medical need in violation of the Fourteenth Amendment and 42 U.S.C. § 1983 against all
Defendants. (Docket No. 2).
II. Defendants’ Statement of Material Facts and Plaintiff’s Responses
On September 19, 2024, Officer Lynch filed his Motion for Summary Judgment (“MSJ”)
including a list of forty-one (41) material undisputed facts (“MUFS”) pursuant to LCvR 56.1(b).
(Docket No. 41). On the same day, Defendant City of Muskogee filed its own Motion for Summary
Judgment and adopted all the MUFS included in Officer Lynch’s MSJ. (Docket No. 43 at 9).
Defendants’ MUFS No. 4 indicates, Officer Lynch was dispatched to a disturbance where he
encountered “a chaotic scene with a crowd of people yelling and screaming at each other with
someone holding a stick and swinging it about as a weapon.” (Docket No. 41 at 13). Officer Lynch
drew his taser and stated, “hey, hey, drop it, drop it right now.” Id. The crowd continued to yell
and scream at each other, so Officer Lynch ordered them to “shut up! be quiet, be quiet.” Id. But
despite his orders, the crowd continued to yell and scream at each other.” Id. While Plaintiff admits
Defendants’ MUFS No. 4, she provides her own additional facts regarding the activities that
occurred prior to police arriving on the scene. (Docket No. 50 at 5).
Defendants’ MUFS No. 5 indicates Officer Lynch then saw Mr. Davis with a gun in his
right hand, which he moved in an upward motion at a woman standing inches from him. (Docket
No. 41 at 13). He instructed Mr. Davis to “Hey! Hey! put that – drop that gun! drop the gun now!”
Id. Mr. Davis did not comply right away, so Officer Lynch again stated “drop the gun now! Drop
the gun now!” Id. Plaintiff denies that Mr. Davis “ever pointed his gun at anyone.” (Docket No.
50 at 5). Plaintiff further disputes that Mr. Davis did not comply with Officer Lynch’s order to drop
the gun, claiming that he complied within 3 seconds of such order. Id. Plaintiff further claims that
prior to dropping the gun, Mr. Davis “removed the magazine or clip.” Id. Defendants’ MUFS No.
6 states Officer Lynch additionally ordered Mr. Davis to “Get on the ground! Get on the ground!
Get on the ground now.” (Docket No. 41 at 13). “Mr. Davis then got on the ground, flat on his
stomach with his upper body off the ground supported by the weight of his arms as he laid there
without saying anything as Officer Lynch was trying to get control of the situation.” Id.
Defendants’ MUFS Nos. 7-9 indicate, while officer Lynch was dealing with the other individuals
on the scene, additional officers including Sergeant Jenkins arrived. Id. at 14. Defendants’ MUFS
No. 10 stated, Mr. Davis, while still laying on the ground, shifted his weight on his left side and
leaned up with his right side to speak with the officers who were standing next to him. Id. at 5-6.
Plaintiff disputes this recitation of facts and claims instead that Mr. Davis was “holding his head
up and evenly balancing himself with both elbows.” (Docket No. 50 at 6). Mr. Davis only raised
his right hand for “approximately 2 seconds, while putting weight on his left elbow.” Id.
Defendants’ MUFS No. 11 states that Sergeant Jenkins approached Mr. Davis who rolled
flat on his stomach while Sergeant Jenkins “calmly ordered him, ‘put your hands behind your
back.’” (Docket No. 41 at 15). Mr. Davis then “shift[ed] his weight to his right side and put his left
arm behind his back to be handcuffed and then put his right arm behind his back and rolled to his
right side while Sergeant Jenkins handcuffed him.” Id. Plaintiff disputes the suggestions that
Sergeant Jenkins was clam or professional in his dealings with Mr. Davis. (Docket No. 50 at 6).
She further argues (even though Defendants’ MUFS No. 11 did not address this) that from Sergeant
Jenkins’ body camera footage, a mass on Mr. Davis’s wrist is seen while Sergeant Jenkins places
handcuffs, and while there is no audio on Sergeant Jenkins’ body camera footage, Sergeant Jenkins
can be seen “touch[ing] the mass on Mr. Davis’s left wrist and pull[ing] back on it.” Id. Plaintiff
argues this is proof that Sergeant Jenkins was aware of Mr. Davis’s AV fistula. Id. Defendants’
MUFS No. 14 states, “[o]nce the handcuffs were on Mr. Davis, Sergeant Jenkins allowed him to
continue to lay on his right side, although the others on the ground were lying flat, while Sergeant
Jenkins put his fingers in between the handcuffs to make sure they were loose on Mr. Davis and
then he double locked them to ensure they would not tighten up on him. Although Mr. Davis had
a fistula in his arm due to his kidney transplant, this was unknown to Sergeant Jenkins as you could
not see it from the back of his arm and Mr. Davis said nothing about having a fistula in his arm
that needed to be protected. He only informed Sergeant Jenkins, ‘Man, I got a kidney transplant.’
Sergeant Jenkins did notice something on Mr. Davis’s left forearm but he believed it to be a cyst,
or a deformity of some kind, or a growth, or an abnormality between his elbow and forearm. Mr.
Davis said nothing to him or anyone else around that it was a fistula that needed to be protected.”
(Docket No. 41 at 15-16). Plaintiff disputes Defendants’ MUFS No. 14 other than that Mr. Davis
told Sergeant Jenkins that he had a kidney transplant to which Sergeant Jenkins replied, “I don’t
care, I’m not touching your damn kidney.” (Docket No. 50 at 7).
Defendants’ MUFS No. 18 indicates, Officer Lynch then assisted Sergeant Jenkins in lifting
Mr. Davis from the ground into a standing position. (Docket No. 41 at 17). While not overtly stated
in Defendants’ MUFS No. 18, Plaintiff denies “the suggestion that Sergeant Jenkins and Officer
Lynch caused no damage to Mr. Davis when they lifted him up off the pavement.” (Docket No. 50
at 7). Defendants’ MUFS No. 19 states, Mr. Davis told Sergeant Jenkins he could not sit on his
back in the car due to his “kidney transplant,” to which Sergeant Jenkins responded, “well you can
sit in there sideways or something.” (Docket No. 41 at 17). Defendants’ MUFS No. 21 indicates,
Mr. Davis requested his handcuffs be moved from behind him to his front, to which Sergeant
Jenkins responded, “[w]e can’t do that.” Id. at 17-18. Defendants’ MUFS No. 23 indicates, while
Mr. Davis did tell Sergeant Jenkins that he could not put his arms behind his back, he did not tell
Sergeant Jenkins why. Id. at 18. Plaintiff, in response, “denies the suggestion that Mr. Davis was
required, under the circumstances, to explain why he couldn’t have his arms behind him.” (Docket
No. 50 at 8). She also argues that Sergeant Jenkins “already knew that Mr. Davis: (A) had kidney
transplant; and (B) had a fistula in his wrist or forearm.” Id. Defendants’ MUFS No. 25 states, after
sitting in a patrol car for approximately seven minutes Mr. Davis told another officer on scene,
Officer Bemo, that he “had renal failure, had a kidney transplant, and that he needed some water.”
(Docket No. 41 at 18). Officer Bemo requested an ambulance to come check on Mr. Davis. Id.
Plaintiff admits the facts contained in Defendants’ MUFS No. 25 but adds that while asking for
water, Mr. Davis was in obvious distress and “had genuine panic in [his] voice” to which “Officer
Bemo2 was utterly dismissive.” (Docket No. 50 at 8).
Defendants’ MUFS No. 26 states, “[a]t approximately eight minutes after having been put
into the patrol car, Mr. Davis (for the first time) announced only to Officer Bemo, ‘I’ve got that
2 Officer Bemo is not a named Defendant. Plaintiff does not allege any claims against him.
fistula on my arm and you ain’t supposed to have nothing on there. You ain’t supposed to have
nothing restricting it . . .’” (Docket No. 41 at 19). Plaintiff only “disputes the assertion that Bemo
was the first officer who Mr. Davis notified of his fistula.” (Docket No. 50 at 9). Defendants’
MUFS No. 27 indicates that Officer Bemo explained to Mr. Davis why he had to be handcuffed,
which Mr. Davis seemed to understand, stating, “I know, give me water, I’m fine with the
handcuffs, just give me some water.” (Docket No. 41 at 19). Plaintiff admits this MUFS but
indicates that it omits pertinent facts. (Docket No. 50 at 9).
Defendants’ MUFS No. 32 indicates “Mr. Davis then stated to Officer Bemo regarding his
handcuffs, ‘I need this thing off my wrist.’” (Docket No. 41 at 20). Officer Bemo, having
determined what had happened and being assured that Mr. Davis was not a threat, responded, “can
– can you sit down if I take them off?” Id. Mr. Davis agreed, and Officer Bemo patted him down
for officer safety and removed the handcuffs. Id. Mr. Davis stated, “I need water more than
anything, sir.” Id. Officer Bemo then asked another officer to get Mr. Davis’s bottled water out of
his car, although he did ask Mr. Davis, “ain’t nothing crazy in it, is there?” Mr. Davis responded
that he “can’t take no crazy stuff. I got a kidney transplant.” Id. The other officer brought Mr. Davis
his bottled water and Mr. Davis continued to explain what happened at the scene. Id. Officer Bemo
informed dispatch that Mr. Davis has “some kidney issues. He said he just needed some water
. . .” Id. Again, Plaintiff admits this MUFS is factually correct but indicates that it omits pertinent
facts. (Docket No. 50 at 9).
Defendants’ MUFS No. 34 states that EMS personnel asked Mr. Davis if he wanted to go
to the hospital multiple times and he responded, “I’m okay. I just had ten minutes to release this
arm.” “I’m okay man. I just had to sit here for a few minutes. I’m okay.” (Docket No. 41 at 21).
When EMS asked Mr. Davis if he was hurt, Mr. Davis responded, “I just need – I just got too
sweaty and I told him I can’t (unintelligible). . . . I said, you can’t put no cuffs on me. I’m not – no
threat. And he kept on putting them behind my back anyway.” Id. Plaintiff “vehemently disputes”
the assertion that Mr. Davis did not tell Sergeant Jenkins that he had a fistula on his arm and only
told him he was “not a threat.” (Docket No. 50 at 10). Plaintiff further disputes that Mr. Davis
made no medical complaints to EMS, and notes that body camera footage shows the “fistula on
Mr. Davis’s left arm was obviously and extremely swollen.” Id. Defendants’ MUFS No. 35
indicates that while Mr. Davis refused medical treatment or to be taken to the hospital at the scene,
he did present at Wagoner Community Hospital emergency room later that evening. Id. Medical
records indicate he had “minor abrasions to his knee and wrists and soft tissue swelling at his
fistula.” (Docket No. 41 at 21). Defendants’ MUFS No. 35 further states that “Mr. Davis’s past
medical records show that Plaintiff’s fistula was inserted in 2014. [S]ix months before this incident
Mr. Davis had undergone a fistulagram to widen the artery due to stenosis . . . . The medical
records reflect that at that time he was ‘not using the fistula now due to his renal transplant one
year ago.’ Following the incident, on September 24, 2018, Plaintiff underwent the same procedure
again due to the stenosis in his artery. Thereafter, he had several fistulagrams and eventually had
the fistula removed since it was not necessary, due to his functioning kidneys.” Id. Plaintiff
“disputes any suggestion that Mr. Davis’s subsequent procedures on the fistula were unrelated to
the use[ ] of police force on September 18, 2018”; however, rather than citing to any medical
records, Plaintiff references Mr. Davis’s own verified answers to interrogatories and photographs
as evidence. (Docket No. 51 at 10). Plaintiff does reference Mr. Davis’s medical records in her
“Additional Facts Precluding Summary Judgment” where she notes, “Mr. Davis presented to
Wagoner County Community Hospital complaining that ‘he was handcuffed by Muskogee Police
and handcuff to left wrist caused fistula to swell and become painful.’. . . A physical examination
at the hospital showed that Mr. Davis’s left forearm was ‘tender with fistula in place obvious thrill’3
and ‘left knee with multiple abrasions . . .’” Id. at 12.
Defendants’ MUFS No. 39 indicates that Mr. Davis never told Sergeant Jenkins he had an
arm fistula or medical device that could not be restricted, and Sergeant Jenkins “believed that Mr.
Davis had a cyst or other abnormality or deformity on his arm.” (Docket No. 41 at 22). Plaintiff
specifically disputes this assertion. (Docket No. 50 at 10). Defendants’ MUFS No. 40 states, “Mr.
Davis was in handcuffs for a total of fifteen minutes and fifteen seconds.” (Docket No. 41 at 22).
Plaintiff does not dispute Defendants’ MUFS No. 40. (Docket No. 50 at 11).
III. Analysis
Under Fed. R. Civ. P. 56(a), summary judgment is appropriate only if the moving party
demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law. A genuine issue of material fact exists when “there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). The moving party bears the initial burden of showing the absence of a
genuine issue of material fact, and the Court draws all reasonable inferences in favor of the
nonmovant. Georgelas v. Desert Hill Ventures, Inc., 45 F.4th 1193, 1197 (10th Cir. 2022). The
nonmovant must then make a showing sufficient to establish an inference of the existence of each
element essential to his case. Bolden v. PRC, Inc., 43 F.3d 545, 548 (10th Cir. 1994). “If a party
that would bear the burden of persuasion at trial does not come forward with sufficient evidence
on an essential element of its prima facie case, all issues concerning all other elements of the claim
3 A correctly functioning fistula has a bruit (a pulse that you can hear) and a thrill (a pulse that can be felt). A bruit
and thrill are normal findings in a healthy fistula and indicate blood flow. Patients are instructed to consult a
physician immediately if either the bruit or thrill appear reduced or absent. See
https://www.azuravascularcare.com/infodialysisaccess/what-is-a-dialysis-fistula-bruit/ (last visited April 25, 2025).
and any defenses become immaterial,” and the moving party is entitled to summary judgment.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671(10th Cir. 1998).
A. Monell Liability against the City
Plaintiff alleges that the City failed to adequately train and supervise its officers, including
Officer Lynch and Sergeant Jenkins, with respect to: the arrest of and use of police force on citizens
with a disability; providing reasonable accommodations for disabled arrestees/detainees; the arrest
of and use of police force on citizens with significant injuries/medical conditions; the use of force
continuum as it pertains to citizens like Mr. Davis; and proper handcuffing technique for citizens
with known injuries, disabilities, or medical conditions. (Docket No 2. at ¶ 55). Furthermore,
Plaintiff alleges there is an established and unabated pattern of excessive use of police force by the
Muskogee Police Department (“MPD”) evincing a municipal “custom.” Id. at ¶ 56. The City
argues, other than conclusory statements, Plaintiff fails to make a showing to support her claims
against the City for either theory. (Docket No. 43 at 2). The Court agrees.
To establish municipal liability under § 1983, a plaintiff must show (1) the existence of a
municipal policy or custom, and (2) that there is a direct causal link between the policy or custom
and the injury alleged. Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). A
municipality may not be held liable for the actions of its officers if those actions do not constitute
a violation of a plaintiff’s constitutional rights. City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986); Apodaca v. Rio Arriba County Sheriff's Dept., 905 F.2d 1445, 1447–48 (10th Cir. 1990);
Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir. 1988). Both Officer Lynch and Sergeant
Jenkins filed individual Motions for Summary Judgment. (See Docket Nos. 41 and 42). In her
Response to Officer Lynch’s Motion for Summary Judgment, Plaintiff disputes many of Material
Facts presented in Officer Lynch’s motion, but ultimately does not contest Officer Lynch’s claim
that he is entitled to judgment as a matter of law4. (Docket No. 58). Plaintiff fully responded to
Defendant Jenkins’ Motion for Summary Judgment, arguing that Defendant Jenkins’ actions when
handcuffing Mr. Davis and placing him into a patrol vehicle constituted excessive force in violation
of Mr. Davis’s Fourth Amendment rights. (Docket No. 50). Furthermore, Plaintiff argued
Defendant Jenkins was deliberately indifferent to Mr. Davis’s serious medical condition. Upon
analysis of the evidence presented, the Court found that reviewing the facts and evidence in a light
most favorable to the Plaintiff, Plaintiff failed to present evidence for which a reasonable jury
could find Defendant Jenkins violated Mr. Davis’s constitutional rights and, as such, Defendant
Jenkins was entitled to summary judgment and qualified immunity. (Docket No. 74).
Finding no constitutional violations by Officer Lynch or Sergeant Jenkins, the Court will
look to the remaining evidence regarding other City officers involved in this matter. The only other
officer whose actions are implicated in Plaintiff’s allegations is Officer Bemo. Plaintiff alleges that
Officer Bemo knew Mr. Davis had a medical condition that required reasonable accommodations
and Officer Bemo failed to make those accommodations, therefore knowingly disregarding a
substantial risk to Mr. Davis’s health and safety, in violation of the Fourteenth Amendment.
(Docket No. 51 at 13). The Court does not agree.
The evidence presented shows that after Mr. Davis was handcuffed, he was placed in
Officer Bemo’s patrol car while officers on the scene conducted an investigation. (Docket No. 41-
10 at 2-10). Officer Bemo returned to his patrol car approximately seven minutes after Mr. Davis
was initially placed inside.5 (Docket No. 41 at 9). Upon his return, Mr. Davis first told Officer
Bemo, “I’ve got renal failure. I just had a kidney transplant. I need some water quick. Hurry up!
4 Based on Plaintiff Response, the Court granted Defendant Lynch’s Motion for Summary Judgment. (See Docket
No. 73).
5 Plaintiff does not dispute this fact.
Please!”. (Docket No. 41-10 at 12). Officer Bemo responded by asking Mr. Davis if he needed an
ambulance, then spoke to another officer attempting to get an ambulance for Mr. Davis. Id. Mr.
Davis then requests water again and tells Officer Bemo that there is some in his car. Id. Officer
Bemo conveys this request and information to another officer. Id. at 13. Mr. Davis then tells Officer
Bemo, “I’ve got that fistula on my arm and you ain’t supposed to have nothing on there. You ain’t
supposed to have nothing restricting it.” Id. Officer Bemo replied, “You’ve got what?” at which
time Mr. Davis again stated, “I have a fistula on my arm.” Id.
To establish Officer Bemo violated the Fourteenth Amendment and was deliberately
indifferent to Mr. Davis’s serious medical needs, Plaintiff must show that Officer Bemo “failed to
act despite his knowledge of a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825,
842 (1994). In other words, Officer Bemo “must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837). There is
no evidence presented in the record that Officer Bemo knew what a fistula was or knew that it
could pose a substantial risk of harm.
What is in the record and what both parties agree to is that “Officer Bemo informed [Mr.
Davis] that ‘we’re having an ambulance come over here and they’ll deal with this.’ Then Mr. Davis
began telling Officer Bemo about the incident that took place which caused the disturbance. After
this, which was less than two minutes after Officer Bemo arrived and opened the car door, . . . Mr.
Davis requested that the air be turned on and he be left in the car rather than getting out as follows:
Officer Bemo stated ‘well, come out of there because all of this heat right here’ and Mr. Davis
responded: ‘if you could turn the air on, that’d be better.’”6 (Docket No. 41 at 19-20). “Officer
6 These facts were presented as Defendants’ Material Undisputed Fact No. 29, which Plaintiff expressly admitted.
(Docket No. 51 at 5).
Bemo allowed Mr. Davis to come out of the car and told Mr. Davis to ‘have a seat right here on
the sidewalk.’ Mr. Davis responded, ‘I can’t sit on the ground. I can sit on the car’ as he begins to
lean up against the back of a patrol car. Officer Bemo responded, ‘well, yeah --- yeah, you can do
that.’”7 Id. at 20. “Mr. Davis then stated to Officer Bemo regarding his handcuffs, ‘I need this
thing off my wrist.’ Officer Bemo, having determined what had happened and being assured that
Mr. Davis was not a threat, . . . responded, ‘can – can you sit down if I take them off?’ Mr. Davis
agreed, and Officer Bemo patted him down for officer safety and then took the handcuffs off. Mr.
Davis stated, ‘I need water more than anything, sir.’ Officer Bemo then asked another officer to
get Mr. Davis’s bottled water out of his car, although he did ask Mr. Davis, ‘ain’t nothing crazy in
it, is there?’ Mr. Davis responded that he ‘can’t take no crazy stuff. I got a kidney transplant.’ The
other officer brought Mr. Davis his bottled water. Mr. Davis continued to explain what happened
at the scene. Officer Bemo informs dispatch, ‘he’s got some kidney issues. He said he just needed
some water . . .’”8 Id. Mr. Davis was then seen by EMS personnel. (Docket No. 41-10 at 22).
There is nothing in the evidence before the Court that shows Officer Bemo disregarded a
substantial risk to Mr. Davis’s health and safety. In fact, the evidence shows that Officer Bemo
requested an ambulance for Mr. Davis, ensured Mr. Davis received water, allowed him to exit the
hot patrol car so that he could have some air, and permitted him to lean on the patrol car rather
than sit on the sidewalk. Ultimately, after hearing Mr. Davis’s account of the events, Officer Bemo
removed Mr. Davis’s handcuffs. Plaintiff fails to show that Officer Bemo failed to act despite his
knowledge of a substantial risk of serious harm. Officer Bemo did act regarding Mr. Davis’s
7 These facts were presented as Defendants’ Material Undisputed Fact No. 30, which Plaintiff expressly admitted.
(Docket No. 51 at 5).
8 These facts were presented as Defendants’ Material Undisputed Fact No. 32, which Plaintiff expressly admitted,
but noting that Defendant omitted several pertinent facts. (Docket No. 51 at 6).
complaints. While Plaintiff argues that Officer Bemo knew, or it was obvious, that Mr. Davis had
a medical condition that required reasonable accommodations, Plaintiff fails to present evidence
to support this statement. (Docket No. 51 at 13). Just like with Sergeant Jenkins, there is nothing
in the record to suggest that Officer Bemo knew what an AV fistula was or its implications. Mr.
Davis told Officer Bemo that the fistula cannot be restricted, but Officer Bemo noted that the
handcuffs were not on the fistula, they were instead “down by [his] hands.” (Docket No. 41-10 at
16). Because nothing in the record supports a Fourteenth Amendment violation claim of deliberate
indifference by any officer against Mr. Davis, the City is entitled to summary judgment as to
Plaintiff’s claims of Monell Liability.
B. Negligence against the City
In addition to constitutional violation claims, Plaintiff alleges a state law negligence claim
against the City. (Docket No. 2 at 13-14). Plaintiff’s state law negligence claim is governed by the
Oklahoma Governmental Tort Claims Act (“OGTCA”), which is the exclusive remedy by which
an injured plaintiff may recover against an Oklahoma governmental entity for its torts and the torts
of its employees. Fuller v. Odom, 741 P.2d 449, 451-53 (Okla. 1987); see also Okla. Stat. tit. 51,
§ 153(B). The OGTCA adopts and reaffirms the sovereign immunity of the state, its political
subdivisions, and all employees acting within the scope of their employment. Okla. Stat. tit. 51, §
152.1(A). To succeed on her negligence claim, Plaintiff must prove: (1) the existence of a duty on
the part of a defendant to protect the plaintiff from injury; (2) a violation of that duty; and (3) injury
proximately resulting from the violation. Tomlinson v. Love’s Country Stores, Inc., 854 P.2d 910,
915 (Okla. 1993). Plaintiff argues the evidence establishes Sergeant Jenkins and Officer Bemo
acted with intentional or reckless failure to accommodate Mr. Davis’s disability and deliberate
indifference to his serious medical needs. (Docket No. 51 at 13). Plaintiff argues, “[a]t a minimum,
Jenkins and Bemo treated Mr. Davis with negligence. And he was injured as a proximate cause of
that negligence.” Id. However, Plaintiff presents no evidence to support this statement. First, as
noted in the Opinion and Order granting Sergeant Jenkins’ Motion for Summary Judgment,
Sergeant Jenkins was not deliberately indifferent to Mr. Davis’s medical conditions that he was
aware of. (Docket No. 73 at 15-16). Additionally, Officer Bemo was not deliberately indifferent
towards Mr. Davis. In fact, officer Bemo took actions to address Mr. Davis’s medical needs,
including requesting an ambulance, providing water, removing Mr. Davis from the hot patrol car,
and allowing him to lean on the patrol car. Finally, Plaintiff has not established that Mr. Davis was
injured as a result of the Defendants’ actions.
Plaintiff additionally makes a specific claim for negligent use of excessive force against
the City for the actions of Sergeant Jenkins. As noted in the Opinion and Order granting Sergeant
Jenkins’ Motion for Summary Judgment, Sergeant Jenkins’ actions in handcuffing Mr. Davis were
objectively reasonable under the circumstances and not excessive. (Docket No. 74 at 10-14).
Accordingly, the City is entitled to summary judgment as to Plaintiff’s negligence claims.
C. Violations of the Americans with Disabilities Act (“ADA”)
Plaintiff further claims Defendant violated Mr. Davis’s statutory rights under Title II of the
ADA by the officers’ failure to reasonably accommodate Mr. Davis’s disabilities during their
investigation causing him to suffer greater injury or indignity. (See Docket No. 2 at 15-16). Title
II of the ADA states, “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In order
to succeed on Plaintiff’s claim for ADA violations, Plaintiff must prove that: (1) Mr. Davis was a
qualified individual with a disability; (2) Mr. Davis was either excluded from participating in or
denied the benefits of some public entity’s services, programs or activities, or was otherwise
discriminated against by the public entity; and (3) such exclusion, denial of benefits, or
discrimination was by reason of Mr. Davis’s disability. Crane v. Utah Dept. of Corrections, 15
F.4th 1296, 1312 (10th Cir. 2021). “Courts have recognized three ways to establish a
discrimination claim: (1) intentional discrimination (disparate treatment); (2) disparate impact; and
(3) failure to make a reasonable accommodation.” J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289,
1295 (10th Cir. 2016) (citations omitted).
Plaintiff specifically claims Officer Bemo and Sergeant Jenkins failed to make reasonable
accommodations for his disabilities during their investigative detention of him. (Docket No. 2 at
15-16, Docket No. 51 at 9-11). “A public entity must provide a reasonable accommodation under
the ADA when it knows that the individual is disabled and requires an accommodation of some
kind to participate in or receive the benefits of its services.” J.V., 813 F.3d at 1299 (internal
quotation marks omitted). Plaintiff argues that “Mr. Davis repeatedly requested accommodation
in not being handcuffed at all, being handcuffed in the front of his body and not being forced to sit
in a squad car [ ] while cuffed behind his back. The reason for these requests was obvious.” (Docket
No. 51 at 10). While the evidence shows the officers knew Mr. Davis had a kidney transplant, the
evidence also shows that the officers made reasonable accommodations to him based on this
knowledge.9 Furthermore, Plaintiff does not allege any injury to Mr. Davis’s kidney as a result of
the handcuffing.
As for Mr. Davis’s AV fistula, the record is not clear as to whether Sergeant Jenkins knew
Mr. Davis had an AV fistula on his arm, however, there is nothing in the record that to suggest that
Sergeant Jenkins knew what an AV fistula was and knew that handcuffing Mr. Davis could pose
9 Sergeant Jenkins allowed Mr. Davis to lay on his side while handcuffed, assisted him in getting up, helped him into
a patrol car, and told him he could sit sideways for his comfort. (Docket No. 42 at 7).
a risk of exacerbating Mr. Davis’s medical condition. As such, there is nothing in the record to
show that Sergeant Jenkins knew of Mr. Davis’s disability or knew that Mr. Davis required an
accommodation for it. The record does show that Mr. Davis specifically told Officer Bemo that he
had a fistula on his arm that could not be restricted, for which Officer Bemo requested an
ambulance, removed Mr. Davis from the hot patrol car, allowed Mr. Davis to lean on the patrol
car rather than sit on the sidewalk, made sure Mr. Davis received water, and eventually removed
the handcuffs. These are reasonable accommodations under the circumstances.
Furthermore, Plaintiff has failed to show that Mr. Davis suffered greater injury or indignity
than other arrestees. Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th Cir. 1999). As discussed in
the Court’s Opinion and Order on Sergeant Jenkins’ Motion for Summary Judgment, (Docket No.
74), there is no evidence in the record that establishes Mr. Davis suffered substantial harm as a
result of Defendants’ interactions with him. While Mr. Davis was seen at Wagoner Community
Hospital on the evening of the incident complaining of pain and swelling to his fistula due to
handcuffing, only soft tissue swelling was noted in his left wrist and Tylenol and ice were
recommended for pain. (Docket No. 41-11 at 4). His fistula was noted as “in place with obvious
thrill.”10 Id. at 5. Finally, despite Mr. Davis’s own belief that he was “forced to undergo multiple
surgeries to repair damage to his AV fistula,” there is no evidence in the record to support this
10 The evidence of “obvious thrill” in the medical records indicates there was adequate blood flow through the
fistula.
assertion.11 (Docket No. 50-4 at 7). Accordingly, the City is entitled to summary judgment as to
Plaintiff’s claims of ADA violations12.
IV. Conclusion
For the foregoing reasons, the Court finds that Plaintiff has failed to present sufficient
evidence to establish any genuine dispute of material fact as to her claims against the City of
Muskogee. The record does not support a finding of any underlying constitutional violation by the
individual officers, nor does it show a municipal policy or custom that caused a deprivation of Mr.
Davis’s rights, as required to establish Monell liability. Additionally, Plaintiff’s state law
negligence claims fail under the Oklahoma Governmental Tort Claims Act, as the evidence does
not demonstrate that the officers acted negligently or that Mr. Davis sustained an injury
proximately caused by their conduct. Finally, Plaintiff’s ADA claim cannot survive summary
judgment because the evidence shows that reasonable accommodations were made, and no injury
or indignity greater than that experienced by other arrestees has been demonstrated. Accordingly,
the City is entitled to summary judgment on all claims.
IT IS SO ORDERED this 1st day of May, 2025.
____________________________________
D. Edward Snow
United States Magistrate Judge
11 Plaintiff argues that Mr. Davis’s verified responses to Interrogatories, which indicate that as a result of the incident
at issue he was “forced to undergo multiple surgeries to repair damage to his AV fistula” support his claim that his
subsequent procedures were necessitated by Defendants’ actions; however, Plaintiff also indicates that he is not a
physician and therefore not qualified identify the damages caused by Defendants. (Docket No. 50-4 at 7). Plaintiff’s
counsel admitted at the oral hearing, that apart from this Interrogatory, there is no evidence to support Plaintiff’s claim
that Mr. Davis had to undergo additional surgeries as a result of being handcuffed on September 18, 2018.
12 Plaintiff additionally makes a claim against the City for failure to train its officers on the ADA which resulted in
Mr. Davis’s injuries. However, as analyzed above, the Officers involved did make reasonable accommodations for
Mr. Davis’s known disabilities and therefore no violation for failure to train can be found.