Hayes v. Owen

Qnited States District Court

for the s2orthern District of Oklahoma

Case No. 22-cv-230-JDR-SH

BASE FILE

Consolidated with:

Case No. 22-cv-231

Case No. 22-cv-274

Case No. 22-cv-275

ANITA JEAN HAYES; SALINDA EVE HAYEs,

Consolidated Plaintiffs,

versus

SCOTT OWEN, his official capacity, MICHAEL KITCHENS;

B. UNDERWOOD; J. CUTLER; J. INMAN; SUMMER SONG DavVISs;

PATRICK JOSEPH BALLARD,

Defendants/Consolidated Defendants.

OPINION AND ORDER

Plaintiffs Anita Jean Hayes and Salinda Eve Hayes were arrested on

January 17, 2021, for obstruction. They allege that, during the arrest and sub-

sequent detention, Defendants Washington County Sheriff Scott Owen,

Deputy Patrick Joseph Ballard, Deputy Summer Song Davis, Officer Michael

Kitchens, Officer B. Underwood, Officer J. Cutler, and Officer J. Inman vio-

lated their civil rights. The Defendants have moved for summary judgment

on all claims. Dkts. 120, 122. The motions are granted.

The following facts are supported by evidence in the record and are

construed in a light most favorable to the non-movants: On the morning of

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January 17, 2021, Deputy Ballard was asked to accompany a tenant who be-

lieved she had been wrongfully evicted and needed help reclaiming her be-

longings from the house she was renting. He helped her enter through the

window. While they were at the house, the tenant unknowingly dropped her

phone. The tenant and Deputy Ballard then left the house.

Plaintiffs arrived at the house to assist the landlord in securing the win-

dow. Salinda was using a hatchet to nail a board over the window when the

tenant returned to look for her phone. Dkts. 122 at 10 (¥ 4); 132 at 9 ( 4).

There is no record of what transpired between Plaintiffs and the tenant, but

Deputy Ballard received a call from dispatch asking him to return to the home

because “they’re out in her driveway, threatening [the tenant] with an axe.”

Dkts. 122 at 10 (4/3); 132 at 9 (73).

When Deputy Ballard returned, Plaintiffs’ car was parked in front of

the house. Anita was sitting in the passenger seat while Salinda was standing

inside the open passenger door. As Deputy Ballard approached the vehicle

from behind, he asked “what’s going on?” Salinda responded “T’ve got these

people here,” and then asked Deputy Ballard to back up because he was not

wearing a mask.’ Deputy Ballard then asked, “Where’s the axe?” Salinda

stated “There ain’t no axe.”? Dkts. 122 at 10 (6); 132 at 9 (6). Deputy Bal-

lard responded “Well, I was told there was an axe. So for my safety ....”

Salinda interrupted Deputy Ballard and said “these people are full of shit.

There’s no axe.” When Salinda later told Deputy Ballard the tenant was tres-

passing on private property, the tone of the conversation became confronta-

tional and the two began arguing about whether the road was a private road

‘ Presumably this request was related to the social distancing practiced during the

COVID-19 pandemic.

2 A hatchet was later found under the front passenger seat of plaintiffs’ car at the

scene. Dkts. 122 at 10 (15); 132 at 9 (5). Salinda maintains that an axe is different from a

hatchet, which is why she told Deputy Ballard that there was not an axe at the scene.

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and whether the tenant was, in fact, trespassing. Dkts. 122 at 12 (9); 132 at

9 (9).

Deputy Ballard asked Plaintiffs why they were at the house. They told

him they were there to help their friend, who owned the house, and were in

the process of purchasing the property. After arguing with Plaintiffs about

whether the tenant had been properly evicted and whether she had a right to

be on the property, Deputy Ballard requested Plaintiffs’ identification. Plain-

tiffs refused to provide any information to Deputy Ballard. Dkts. 122 at 11 (

7); 132 at 9 (¢ 7). When Deputy Ballard told Salinda that she would be ar-

rested for obstruction if she did not provide the requested information,

Salinda raised her voice and responded, “I would like to see you try, my sir.

Because | will tell you what, I am quite familiar with my civil rights and you’re

not going to violate me. There is no crime being committed here.”

During this exchange, Deputy Davis arrived and asked Anita if she

owned the property. Plaintiffs responded that they were in the process of pur-

chasing it. Deputy Davis then told Plaintiffs to “shut up.” Anita asked Deputy

Davis if she told them to shut up and Deputy Davis responded, “‘yes ma’am”

and signaled two thumbs up. Salinda asked Deputy Davis to back up. Deputy

Davis told Plaintiffs they needed to leave and again warned them that they

were going to be arrested. Salinda told Deputy Davis that the Deputies

needed to leave because they were on private property. Deputy Ballard asked

Deputy Davis what Plaintiffs were going to be arrested for, and she replied

“obstruction.” Salinda repeatedly yelled “obstruction is not a crime” while

Deputy Ballard grabbed her left wrist and asked her to put her hands behind

her back. Salinda refused to comply.* Dkts. 122 at 12 (¥ 10); 132 at 9 (10).

As Deputy Ballard grabbed Salinda’s arm, Salinda lost her balance, causing

Plaintiffs maintain that they did not comply with Deputy Ballard’s commands be-

cause they believed them to be unlawful. Dkts. 132 at 9 (4/10).

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Deputy Davis, Salinda, and Deputy Ballard to fall to the ground.* Dkts. 122

at 12 (11); 132 at 10 (4 11). As they fell, Deputy Davis punched Salinda and

a struggle followed.

Deputy Davis told Deputy Ballard to tase Salinda because she had her

gun.° Salinda responded that she did not have the gun and asked Anita if she

was filming the altercation. Meanwhile, Anita recorded the altercation on her

phone from a few feet away while yelling at the Deputies.° During the alter-

cation, Deputy Davis’s gun was unholstered but remained in Deputy Davis’s

possession. She appeared to point the gun away from any individuals while

Salinda was struggling with Deputy Ballard. Deputy Ballard warned Salinda

that if she did not put her hands behind her back she was going to be tased.

Salinda continued to resist. Deputy Ballard tased Salinda twice. Afterward,

Salinda told Deputy Ballard to cuff her. While he was doing so, Salinda yelled

“T can’t breathe.” After she was handcuffed, Deputy Ballard walked Salinda

over to his patrol truck and placed her in the back seat.

Meanwhile, Deputy Davis walked over to Anita, took her phone, and

grabbed her right arm to arrest her. Anita resisted and stated, “No ma’am,

I’ve done nothing.” Deputy Davis took Anita to the ground and attempted to

handcuff her. Deputy Davis asked Anita to put her hands behind her back and

warned Anita that she was going to tase her. Anita refused to comply with the

order, so Deputy Davis told her “[the taser] really hurts. Please put your

hands behind your back.” But Anita continued to resist until Deputy Davis

tased her. Deputy Davis was then able to place Anita in handcuffs. When

Anita refused to stand up and walk to Deputy Davis’s patrol car, Deputy

* Deputy Davis was lying on the ground facing up, Salinda was lying on top of Dep-

uty Davis facing down, and Deputy Ballard was lying on top of Salinda facing down.

> Deputy Davis believed that Salinda was trying to unholster her gun during the

altercation, so she took it out to maintain possession of it.

° The footage from Anita’s phone is found at Dkt. 138, videos 2, 4, & 6. The video

of Deputy Davis’s body camera footage is found at Dkt. 138, video 12.

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Davis, Deputy Ballard, and another officer carried her over to the patrol car

and placed her in the back seat. Anita claims that Deputy Davis intentionally

caused her discomfort by turning the heat on high and playing loud music

while she drove to the Washington County Jail.

When they arrived at the jail, Salinda cooperated and left the patrol

truck without resisting.’ Anita, however, did not cooperate. When the Jail Of-

ficers asked her to get out, she told them to step back because none of them

were wearing masks. She gave the same response to their second request. One

of the officers reached into the back of Deputy Davis’s patrol car, grabbed

Anita by the arms, and pulled her out of the car. Anita told the Jail Officers

they were hurting her shoulder. They asked her to stand up and walk, which

she refused to do. Anita again told the Jail Officers they were hurting her

shoulder and that she would not help them “kidnap” her. Eventually, three

Jail Officers and Deputy Ballard carried Anita into the jail and laid her face

down in the holding cell.

While on the ground, Anita told the Jail Officers “You’re fucking my

shit up, guys.” The Jail Officers checked her pockets. At one point, Anita

stated that they were hurting her arm, which she was “pretty sure they al-

ready dislocated.” As the Jail Officers began to remove her wedding ring, she

told them “I don’t think so, guys.” One of the officers attempted to force the

ring off and Anita told them that they would break it, to which he replied, “I

one hundred percent will.” Anita stated “You’re not taking that fucking ring.

That’s my wedding ring.” Anita continued to resist the removal of the ring

while one of the officers applied pressure on her hip. The officer eventually

forced the ring off. Anita was released a few hours later. Salinda was released

the next day.

’ The recitation of the events from the Washington County Jail are taken from one

of the Jail Officer’s body camera footage. Dkt. 122-12.

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II

Plaintiffs began this litigation by filing two separate cases in this Court:

one alleging violations of the First, Fourth, Eighth, and Fourteenth Amend-

ments during the arrests, and one alleging violations of the Fourth, Eighth,

and Fourteenth Amendments during their subsequent detention at the Wash-

ington County Jail.’ Plaintiffs then filed two nearly identical cases in the

Washington County District Court. Defendants removed the two Washing-

ton County cases to this Court, and all four proceedings were consolidated.

Dkt. 11.

An earlier order addressing four motions to dismiss determined the

claims that Plaintiffs had sufficiently alleged: (1) Anita and Salinda’s First

Amendment claims against Deputy Davis and Deputy Ballard in their indi-

vidual capacities; (2) Anita and Salinda’s Fourth Amendment excessive force

claims against Sheriff Owen in his official capacity and Deputy Davis and

Deputy Ballard in their individual capacities; (3) Anita’s Fourteenth Amend-

ment deliberate indifference claim (inadequate medical care) against Sheriff

Owen, in his official capacity, and the Jail Officers, in their individual capaci-

ties; and (4) Anita’s Fourteenth Amendment due process claim (excessive

force) against Sheriff Owen, in his official capacity, and the Jail Officers, in

their official capacities.? Dkt. 55 at 27-28.

All Defendants have moved for summary judgment on Plaintiffs’ re-

maining claims. Dkts. 120, 122. Sheriff Owen argues he cannot be held liable

for any alleged constitutional violations in his official capacity because Plain-

tiffs have failed to identify a Washington County Sheriff’s Office policy,

® Under 42 U.S.C. § 1983, individuals can sue government officials who violate their

constitutional rights while acting under color of law. There is no dispute that the Defend-

ants were acting under the color of law when arresting and detaining the Plaintiffs.

° The Court dismissed Salinda’s claims pertaining to her detention at the jail, Plain-

tiffs’ Eighth and Fourteenth Amendment claims pertaining to their arrest, and Plaintiffs’

Fourth and Eighth Amendment claims pertaining to their detention. Dkt. 55 at 15, 18.

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custom, or persistent practice that caused their injuries, as required by Monell

». New York City Dep't of Soc. Servs., 436 U.S. 658 (1978). Dkt. 120 at 9-13.

The Deputies and Jail Officers argue they are entitled to summary judgment

because: (1) Plaintiffs’ Fourth Amendment claims are barred by the Rooker-

Feldman doctrine and the holding in Heck v. Humphrey, 512 U.S. 477 (1994);

(2) Plaintiffs’ Fourth and Fourteenth Amendment claims fail because the

Deputies and Jail Officers used only minimal force that was reasonable given

Plaintiffs’ resistance; and (3) the Deputies and Jail Officers are entitled to

qualified immunity on all claims. Dkt. 122 at 18-28. The motions have been

fully briefed and are ripe for review.'°

Summary judgment is proper “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Federal Rule of Civil Procedure 56(a). A material fact is

one that “might affect the outcome of the suit under the governing law,” and

a dispute is genuine “if the evidence is such that a reasonable jury could re-

turn a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

US. 242, 248 (1986). A court must “‘view the evidence and the reasonable

inferences to be drawn from the evidence in the light most favorable to the

nonmoving party.’” Cronick v. Pryor, 99 F.4th 1262, 1267 (10th Cir. 2024)

(quoting Simpson v. Little, 16 F.4th 1353, 1360 (10th Cir. 2021)). “If the mo-

vant carries the burden of demonstrating an absence of a dispute as to mate-

rial fact, ‘the nonmovant must then go beyond the pleadings and set forth

specific facts that would be admissible in evidence and that show a genuine

issue for trial.” Davis ». GEO Grp. Corr., Inc., No. CIV-16-462-PRW, 2023

WL 2861425, at *2 (W.D. Okla. Jan. 12, 2023) (quoting Martin v. City of Okla.

© After they responded to Defendants’ motions for summary judgment, Plaintiffs

moved to defer consideration of the motions to allow time for additional limited discovery

under Fed. R. Civ. P. 56(d). Dkt. 133. Magistrate Judge Susan E. Huntsman denied the mo-

tion because it failed to explain why Plaintiffs couldn’t establish a genuine issue for trial.

Dkt. 150.

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City, 180 F. Supp. 3d 978, 983 (W.D. Okla. 2016)). To satisfy this obligation,

Plaintiffs cannot rest on mere arguments or allegations; instead, they must

identify the facts that create a genuine dispute by referring to affidavits, dep-

ositions, or specific exhibits. Adler ». Wal-Mart Stores, Inc., 144 F.3d 664, 671

(10th Cir. 1998).

III

The Court begins with Plaintiffs’ First Amendment claims. Construed

generously, Plaintiffs alleged “that Deputy Davis or Deputy Ballard violated

their rights to free speech by asking them to identify themselves or by arrest-

ing them in retaliation for recording their interactions with the deputies,” and

“that Deputy Davis violated their rights to free speech when she told plain-

tiffs to shut up or when she took plaintiffs’ phones and ended Salinda’s Face-

book livestream.” Dkt. 55 at 15. Defendants argue that they are entitled to

qualified immunity because Plaintiffs have failed to show that they violated a

clearly established constitutional right. Dkt. 122 at 24-28. Plaintiffs never spe-

cifically address their First Amendment claims in their response to Defend-

ants’ motions. Instead, their briefing is limited to their allegations regarding

the Fourth, Eighth," and Fourteenth Amendments. Dkt. 132 at 6, 25. The

Court concludes that Plaintiffs abandoned their First Amendment claims and

grants Defendants’ motions for summary judgment. See, e.g., McCants ». Cor-

rect Care Sols., LLC, No. 16-2787-DDC, 2018 WL 2445157, at *5 (D. Kan.

May 31, 2018) (“[W]hen a party fails to respond to arguments made to sup-

port a motion for summary judgment, the party, in effect, abandons that

claim.” (collecting cases)).

IV

The Court turns next to Plaintiffs’ Fourth Amendment claims against

Deputy Ballard and Deputy Davis, which stem from the Deputies’ actions

1 As discussed above and per the Court’s previous order [Dkt. 55], Plaintiffs do not

have a viable Eighth Amendment claim based on the facts of their case.

8g

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during the arrest.” The Deputies argue that Plaintiffs’ Fourth Amendment

claims for unreasonable search, false arrest, and excessive force are barred by

the Rooker-Feldman doctrine or estopped based on the ruling in Heck ».

Humphrey, 512 U.S. 477 (1994). They argue that, because Plaintiffs were ulti-

mately convicted of obstruction," granting Plaintiffs’ requested relief “would

necessarily imply the invalidity of either conviction in the underlying state

criminal cases.” Dtk. 140 at 9. See Dkt. 122 at 18-20. The Court disagrees.

Neither the Rooker-Feldman doctrine nor Heck have any bearing on

Plaintiffs’ excessive force and unreasonable search claims. The facts giving

rise to those claims took place after Deputy Ballard and Deputy Davis told

Plaintiffs they were being arrested for obstruction. Any ruling on those two

claims would not “necessarily imply the invalidity” of Plaintiffs’ obstruction

convictions. Heck, 512 U.S. at 487. Thus, the Court will first consider whether

the false arrest claim is barred by Rooker-Feldman or Heck and then turn to the

merits of each claim.

The Rooker-Feldman doctrine does not bar Plaintiffs’ false arrest

claims. The doctrine seeks to prevent federal district courts “from effectively

exercising appellate jurisdiction over claims actually decided by a state court

and claims inextricably intertwined with a prior state-court judgment.” Mo’s

Express, LLC v. Spokin, 441 F.3d 1229, 1233 (10th Cir. 2006) (quotation marks

and citation omitted). It applies in “cases brought by state-court losers com-

plaining of injuries caused by state-court judgments rendered before the dis-

trict court proceedings commenced and inviting district court review and

” The parties’ briefing makes no distinction between the analysis to be used for the

claims brought under the Oklahoma Constitution or the Federal Constitution. Accordingly,

the Court will analyze the claims together.

8 Salinda was convicted at trial and Anita entered a plea of nolo contendere. A nolo

contendere plea “has the same legal effect as a guilty plea ....” Morgan v. State, 744 P.2d

1280, 1281 (Okla. Crim. App. 1987) (citation omitted).

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rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005). It does not, however, “deprive a federal court of

jurisdiction to hear a claim just because it could result in a judgment incon-

sistent with a state-court judgment.” Mayotte ». U.S. Bank Nat?l Ass’n, 880

F.3d 1169, 1174 (10th Cir. 2018). Plaintiffs are not inviting review of their state

court convictions; in fact, they do not challenge their convictions at all. In-

stead, they are challenging “the manner and method by which they were ar-

rested.” Dkt. 132 at 21. The constitutional injury alleged by Plaintiffs is sepa-

rate and apart from the state court judgments, and the Rooker-Feldman doc-

trine does not apply.

The holding in Heck, however, is applicable to Plaintiffs’ false arrest

claims. In Heck, the Supreme Court held that “when a state prisoner seeks

damages in a § 1983 suit, the district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the invalidity of his conviction

or sentence ....” 512 at 487. “In other words, a civil claim is barred if it seeks

to retry the same facts and legal issues from a prior case where the civil plain-

tiff has already been convicted beyond a reasonable doubt as a criminal de-

fendant.” St. George v. City of Lakewood, No. 22-1333, 2024 WL 3687780, at

*3 (10th Cir. Aug. 7, 2024). The Supreme Court has clarified that “if the dis-

trict court determines that the plaintiff’s action, even if successful, will not

demonstrate the invalidity of any outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in the absence of some

other bar to the suit.” Heck, 512 at 487 (footnotes omitted). For Plaintiffs’

false arrest claims, they must show that the Deputies arrested them without

probable cause. See Loftis v. Conway, No. 24-cv-136-RAW-JAR, 2025 WL

675439, at *3 (E.D. Okla. Mar. 3, 2025) (citation omitted). Thus, resolution

of Plaintiffs’ false arrest claims may call into question the validity of the sub-

sequent convictions. But even if Heck applies, the Court finds that their ar-

rests for obstruction were nevertheless supported by probable cause.

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Turning next to the merits of Plaintiffs’ false arrest claims, the Fourth

Amendment protects “[t]he right of the people to be secure ... against unrea-

sonable searches and seizures ....” U.S. Const. amend. IV. An arrest “is the

most intrusive of Fourth Amendment seizures,” and is “reasonable only if

supported by probable cause.” United States v. White, 584 F.3d 935, 945 (10th

Cir. 2009) (citation omitted). Any arrest “without probable cause that a crime

has been committed violates the Fourth Amendment.” Shroff v. Spellman,

604 F.3d 1179, 1188 (10th Cir. 2010) (citation omitted).

A police officer has probable cause to arrest an individual when he has

sufficient information “to warrant a prudent man in believing that the [sus-

pect] had committed or was committing an offense.” Beck »v. Ohio, 379 U.S.

89, 91 (1964) (citing Brinegar v. United States, 338 U.S. 160, 175-76 (1949);

Henry v. United States, 361 U.S. 98, 102 (1959)). Employing an objective

standard, the court must consider the totality of the circumstances to deter-

mine whether a reasonable officer would have believed that there was proba-

ble cause to make an arrest. Koch v. City of Del City, 660 F.3d 1228, 1239 (10th

Cir. 2011). Probable cause “is measured at the moment the arrest occurs and

must derive from facts and circumstances based on reasonably trustworthy

information.” Cortez »v. McCauley, 478 F.3d 1108, 1121 (10th Cir. 2007) (cita-

tions omitted). “The proper inquiry in a § 1983 claim based on false arrest is

not whether the person arrested actually committed an offense, but whether

the arresting officer had probable cause to believe that he had.” Crawford ex.

rel. Crawford v. Kansas City, Kansas, 952 F. Supp. 1467, 1474 (D. Kan. 1997)

(citing Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)).

Plaintiffs were arrested and convicted of violating Okla. Stat. tit. 21, §

540, “willfully delay[ing] or obstruct[ing] any public officer in the discharge

or attempt to discharge any duty of his or her office ....”” When Deputy Bal-

lard received the call from dispatch, he knew that there was an underlying

landlord/tenant dispute at the address. He also knew that there were people

No. 22-cv-230

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in the driveway threatening the tenant with an axe. This info gave Deputy

Ballard “articulable grounds to initiate a police-citizen contact to verify or

dispel the caller’s concerns.” United States v. Carroll, No. CR 10-3237 LH,

2011 WL 13289809, at *4 (D.N.M. Apr. 26, 2011) (citations omitted). See Ad-

ams v. Williams, 407 U.S. 143, 147 (1972) (stating that reasonable and articu-

lable suspicion of criminal activity can be based on information supplied by

another person; it need not be based solely on the officer’s personal observa-

tion). Because Plaintiffs were the only individuals in the driveway when Dep-

uty Ballard arrived, he had reason to question Plaintiffs about the alleged as-

sault. The dispatch call in combination with Plaintiffs’ presence at the house

and Deputy Ballard’s knowledge of the ongoing landlord/tenant dispute, pro-

vided a sufficient basis for Deputy Ballard to investigate at the scene. At a

minimum, the Deputies had reasonable suspicion to briefly detain Plaintiffs

while they investigated a possible assault.

During the conversation that followed, Deputy Ballard had reason to

suspect that Plaintiffs were involved in or at least witnessed the alleged as-

sault. To investigate the alleged assault, he asked Plaintiffs to either provide

identification demonstrating their right to be on the premises or leave the

scene. See Oliver v. Woods, 209 F.3d 1179, 1189 (10th Cir. 2000) (“When an

officer is conducting a lawful investigative detention based on reasonable sus-

picion of criminal activity, the officer may ask for identification and for an

explanation of the suspect’s presence in the area.”). Plaintiffs refused to pro-

vide identification and refused the Deputies’ requests that they leave the area

so the Deputies could continue their investigation.

Plaintiffs’ refusal to comply with the Deputies’ lawful investigation

gave the Deputies probable cause to arrest the Plaintiffs under Okla. Stat. tit.

21, § 540. See, e.g., Walker v. Anderson, No. 23-cv-8-CVE-JFJ, 2024 WL

3905733, at *10-*11 (N.D. Okla. Aug. 22, 2024) (holding that officers had

probable cause to arrest defendant for obstruction where he refused to pro-

vide identification or to leave the immediate area), see also Tucker v. City of

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Oklahoma City, No. CIV-11-922-D, 2013 WL 5303730, at *10 (W.D. Okla.

Sept. 20, 2013) (holding that conduct which impeded officers’ investigation

into a domestic dispute call gave the officers “probable cause to believe he

had committed a criminal offense of obstruction”); see also United States v.

Johnson, 33 F. App’x 485, 486 (10th Cir. 2002) (holding that sufficient evi-

dence existed to convict defendant of obstruction where defendant refused to

comply with officer’s instructions and impeded officer’s efforts to handcuff

him). As this Court has previously noted, “[t]here is no requirement that a

person use physical force against a police officer in order to commit an offense

under this statute.” Walker, 2024 WL 3905733, at *11 (citing Marsh »v. State,

761 P.2d 915, 916 (Okla. Crim. App. 1988)). “[WJords alone may suffice to

support a conviction for Obstructing an Officer.” Tent v. State, 777 P.2d

401,402 (Okla. Crim. App. 1989). Because Deputy Ballard and Deputy Davis

had probable cause to arrest Plaintiffs, they are entitled to summary judg-

ment on the Fourth Amendment false arrest claims.

Plaintiffs assert that the Deputies illegally searched their car after the

arrests. A warrantless search is per se unreasonable unless a valid exception

to the Fourth Amendment’s warrant requirements applies. See, e.g., United

States v. Lowe, 999 F.2d 448, 451 (10th Cir. 1993) (citing Coolidge v. New

Hampshire, 403 U.S. 443, 474 (1971)). But it is not enough for Plaintiffs to

show that the Deputies’ search was unreasonable; to recover, they must also

show that the search caused them “actual, compensable injury ... which ...

does not encompass the ‘injury’ of being convicted and imprisoned (until his

conviction has been overturned).” Heck, 512 U.S. at 487 n.7 (citing Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986)). Here, even assuming

“ And because the arrests were supported by probable cause, Plaintiffs cannot ar-

gue that their resistance was justified. See, e.g., Chatman v. Buller, No, 12-cv-182-JHP, 2013

WL 632355, at *9 (E.D. Okla. Feb. 20, 2013) (‘Oklahoma courts recognize a limited right

to resist an unlawful arrest under certain circumstances.” (collecting cases)).

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Plaintiffs demonstrate an illegal search, they have provided no evidence of an

injury resulting from the search. No fruit of the search was used to convict

either Plaintiff; they were never charged for any conduct involving the use of

the axe. In the absence of a compensable injury resulting from the search, the

Deputies are entitled to summary judgment on Plaintiffs’ unreasonable

search claims.

Plaintiffs’ also claim the Deputies used excessive force during the ar-

rests. To prevail on these claims, Plaintiffs must show “that the force pur-

posely or knowingly used against [them] was objectively unreasonable.” Kzng-

lsey v. Hendrickson, 576 U.S. 389, 396-97 (2015); Cavanaugh v. Woods Cross

City, 625 F.3d 661, 664 (10th Cir. 2010). The Court must determine “whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and cir-

cumstances confronting them, without regard to their underlying intent or

motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989) (citations omitted).

The Court considers three nonexclusive factors courts when assessing

the reasonableness of an officer’s use of force: (1) “the severity of the crime

at issue;” (2) “whether the suspect poses an immediate threat to the safety of

the officers or others;” and (3) whether [the suspect] is actively resisting ar-

rest or attempting to evade arrest by flight.” Jd. at 396 (citing Tennessee v. Gar-

ner, 471 U.S. 1, 9 (1985)). A “calculus of reasonableness must embody allow-

ance for the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolv-

ing—about the amount of force that is necessary in a particular situation.” /d.

at 396-97. Thus, the reasonableness of “a particular use of force” must be

assessed from “the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” /d. at 396 (citing Terry ». Ohio, 392

U.S. 1, 20-22 (1968)). See Tenorio »v. Pitzer, 802 F.3d 1160, 1164 (10th Cir.

2015) (“The belief need not be correct—in retrospect the force may seem

unnecessary—as long as it is reasonable.”). A reviewing court “looks at the

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facts and circumstances as they existed at the moment the force was used,

while also taking into consideration the events leading up to that moment.”

Emmett v. Armstrong, 973 F.3d 1127, 1135 (10th Cir. 2020) (citation omitted).

With respect to the first Graham factor, felonies or crimes involving

violent conduct are considered severe. Vette v. K-9 Unit Deputy Sanders, 989

F.3d 1154, 1170 (10th Cir. 2021) (“[B]inding precedent indicates the first Gra-

ham factor weighs against the plaintiff when the crime at issue is a felony, ir-

respective of whether that felony is violent or nonviolent.”’); Jbarra v. Lee, No.

22-5094, 2023 WL 6939236, at *10 (10th Cir. Oct. 20, 2023) (“A felony or

violent conduct justifies more force.”). Although Plaintiffs were only arrested

for obstruction, a misdemeanor, Deputy Ballard was investigating felony as-

sault and battery with an axe, a crime involving violent conduct. See, e.g., An-

dersen v. DelCore, 79 F.4th 1153, 1164 (10th Cir. 2023) (finding that the sever-

ity of crime factor weighed in officer’s favor because he was investigating the

crime of child abuse, even though the suspect was arrested for the misde-

meanor crime of obstructing an officer). The first Graham factor weighs in

favor of the Deputies’ use of force.

As to the second factor, Plaintiffs posed a moderate threat to the safety

of the Deputies and others at the house. “Under the second factor, an officer

may use increased force when a suspect is armed, repeatedly ignores police

commands, or makes hostile motions towards the officer or others.” Donahue

». Wihongi, 948 F.3d 1177, 1196 (10th Cir. 2020). To evaluate this factor,

“courts must consider the level of threat posed at the precise time the officer

used increased force.” Walker, 2024 WL 3905733, at *7 (citing Vette, 989 F.3d

at 1171).

From the beginning of the interaction, Plaintiffs were hostile and re-

fused to answer Deputy Ballard’s questions. Deputy Ballard had yet to locate

the axe when Plaintiffs, who were beside the vehicle where a weapon could

have been stored (and where one was later found), yelled at the Deputies and

15

No, 22-cv-230

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refused their orders to provide identification or leave. Under these circum-

stances, the Deputies were entitled to use force to maintain order at the

scene. See, e.g., Tucker v. Haney, No. 14-cv-04-GKF-PJC, 2014 WL 6074053,

at *7 (N.D. Okla. Nov. 13, 2014) (holding that the second Graham factor

weighed in favor of the officer because “[s]he had aggressively disrupted a

situation in which a single officer was responsible for detaining and question-

ing three individuals,” “threatened and cursed at her son[,] and refused the

officer’s order to back away.”’); see also Novitsky ». City of Aurora, 491 F.3d

1244, 1254 (10th Cir. 2007) (“Under certain circumstances, the steps officers

may permissibly take to protect their safety include drawing their weapons,

placing a suspect in handcuffs, or forcing a suspect to the ground.”); see also

Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1031 (10th Cir. 1997) (holding

that the use of an arm bar maneuver and take-down of an individual was rea-

sonable to protect the safety of two officers in light of the individual’s

“strange and aggressive conduct”).

The third Graham factor weighs in favor of “ ‘some degree of physical

coercion or threat,’ when an individual refuses to obey an officer’s lawful or-

ders[.]” DelCore, 79 F.4th at 1165-66 (quoting Graham, 490 U.S. 396; Mecham

v. Frazier, 500 F.3d 1200, 1204-05 (10th Cir. 2007)). The Deputies gave Plain-

tiffs numerous opportunities to comply with instructions that would have fa-

cilitated their investigation. Instead, Plaintiffs refused to obey, yelled at the

Deputies, and became increasingly hostile toward them as the interaction

progressed. When the Deputies attempted to place Plaintiffs in handcuffs,

neither complied. When the Deputies asked Plaintiffs to put their hands be-

hind their backs, neither complied. When the Deputies warned Plaintiffs that

they would be tased, neither complied. Plaintiffs concede that they resisted

arrest until they were tased and ultimately handcuffed. Dkts. 122 at 13 ({{ 12-

15); 132 at 10 (YJ 12-14). Each escalation in the level of force used by the

Deputies was preceded by noncompliance and the Deputies’ warnings that

force would continue to escalate if noncompliance continued. See, ¢g.,

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DelCore, 79 F.4th at 1168 (“When an officer lawfully uses force but an indi-

vidual resists that initial use of force, we think it obvious that the officer may

use a greater degree of force than would have initially been appropriate to

subdue the individual, obtain peace, and ensure that the officers had control

over the situation.”) The use of force and the degree of force used was rea-

sonable under the circumstances, and Plaintiffs have not shown that the Dep-

uties acted unreasonably considering Plaintiffs’ actions. The third factor

weighs in favor of the Deputies.

Based on the Graham factors analyzed above, a jury could not reason-

ably conclude that the Deputies’ use of force was clearly unreasonable. The

Deputies are entitled to summary judgment on Plaintiffs’ Fourth Amend-

ment excessive force claims.

The Court next turns to Anita’s claim that her Fourteenth Amend-

ment rights were violated while she was detained at the Washington County

Jail. Anita first told Deputy Davis that she needed medical care while being

transported to the jail. Dkt. 132-2 at 3 (13). She also told several Jail Officers

that they were hurting her and that she needed medical attention. /d. (J 16);

Id. at 4 (920). When taken to get processed, Anita was unable to walk, so the

Jail Officers brought her a wheelchair. /d. (YJ 23-24). After being processed,

Anita was released on bond and immediately sought medical care. Jd. at 5 (TW

26-27).

As a pretrial detainee, Anita was entitled to custodial medical care un-

der the Due Process Clause of the Fourteenth Amendment. See Estate of

Beauford v. Mesa Cty., 35 F.4th 1248, 1262 (10th Cir. 2022) (indicating that

the “right to custodial medical care is well settled”).” A jail official violates

'S There is no difference between the standard of medical care owed to convicted

inmates under the Eighth Amendment and the standard applicable to pretrial detainees un-

der the Due Process Clause. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

(footnote continues)

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the Due Process Clause by acting with “deliberate indifference to an inmate’s

serious medical needs.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). To

establish a right to relief for deliberate indifference under 42 U.S.C. § 1983, a

plaintiff must first show that she suffered from a sufficiently serious medical

need. Lucas »v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1136-37 (10th Cir.

2023). This component, which is viewed objectively, is satisfied if the de-

tainee can point to a medical need that “‘has been diagnosed by a physician

as mandating treatment or ... is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.’” Sealock ». Colorado, 218

F.3d 1205, 1209 (10th Cir. 2000) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224

(10th Cir. 1999)). Next, the plaintiff must show that the officer subjectively

knew of “a substantial risk of harm and disregarded that risk, by failing to take

reasonable measures to abate it.” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th

Cir. 2006) (internal quotation marks and citation omitted). In contrast with

the objective component, the subjective component hinges on the symptoms

displayed by the detainee.

Here, Anita has provided no evidence of how long she was detained,

other than the fact that she was released the same day as her arrest. Upon

release, she was taken to the emergency room at Jane Phillips Hospital. Anita

received x-rays, which were negative for any broken bones, and then decided

to leave without accepting any treatment.

For Anita to avoid summary judgment on her Fourteenth Amendment

claim, she was required to set forth facts demonstrating that the Jail Officers’

delay in meeting her serious medical need caused her substantial harm. See

Sealock, 218 F.3d at 1210. The Court has not seen evidence from which a jury

could find that the Jail Officers delayed or refused medical care. But even as-

suming the evidence could establish such delay, Anita’s claim fails because

Because the analysis applied when reviewing violations of these provisions is the same, the

Court relies on authority concerning both types of cases. Estate of Beauford, 35 F.4th at 1262.

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there is no evidence that the delay caused her any harm. See Martin v. Tulsa

Cty. Bd. of Comm’rs, 99 F.3d 1150, at *1 (10th Cir. 1996) (“Postponing surgery

for an extended period, even until the prisoner’s release from prison, does

not provide a cause of action for deliberate indifference to serious medical

needs if the delay would not cause further damage.”); see also Garrett v. Strat-

man, 254 F.3d 946, 950 (10th Cir. 2001) (“[T]he substantial harm require-

ment may be satisfied by lifelong handicap, permanent loss, or considerable

pain.”’)

In the complaint, Anita described her injuries as post-traumatic stress

disorder; aggravated anxiety with agoraphobia; ruptured and bulging discs in

her back; nerve damage in her pinky finger, wrists, ankle, back, and leg; bruis-

ing and lacerations on her arms and legs; permanent bruising on her ankle;

suspected deep vein thrombosis in her leg; and she is wheelchair bound due

to these injuries. Dkt. 1 at 11. But she points to no evidence that any of these

conditions worsened because of a delay in medical treatment, or that she suf-

fered unnecessary pain. See, e.g., Sandifer v. Green, 126 F. App’x 908, 911

(10th Cir. 2005) (“[Plaintiff’s] allegation that his condition deteriorated does

not demonstrate a constitutional violation because he has not shown that the

delays caused him substantial harm.”’). Anita received medical attention the

same day she complained about her injuries and refused any treatment.

Anita’s failure “to establish the existence of an element essential to [her] case,

... on which [she] will bear the burden of proof at trial,” directs a finding that

there exists “‘no genuine issue as to any material fact.’” Celotex Corp. ».

Catrett, 477 U.S. 317, 322-23 (1986) (quoting Fed. R. Civ. P. 56(c)). The Jail

Officers are entitled to summary judgment on Anita’s deliberate-indifference

claim.

¥I

Anita also claims that the Jail Officers used excessive force when they

carried her into the holding cell and removed her ring. Pretrial detainees are

protected from the use of excessive force under the Fourteenth

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Amendment’s due process clause. Rowell v. Bd. of Cty. Comm’rs of Muskogee

Cty., Okla., 978 F.3d 1165, 1171 (10th Cir. 2020). An officer violates the Four-

teenth Amendment by purposely or knowingly using force against a pretrial

detainee that is “objectively unreasonable.” Kingsley ». Hendrickson, 576 U.S.

389, 396-97 (2015).

The test for objective reasonableness turns on the “facts and circum-

stances of each particular case.” Jd. at 397 (quoting Graham v. Connor, 490

U.S. 386, 396 (1989)). The analysis must consider the “legitimate interests

that stem from the government’s need to manage the facility in which the

individual is detained, appropriately deferring to policies and practices that

in the judgment of jail officials are needed to preserve internal order and dis-

cipline and to maintain institutional security.” fd. (brackets and quotations

omitted). Factors the Court should consider in its objective reasonableness

review are: (1) the relationship between the need for the use of force and the

amount of force used, (2) the extent of the plaintiff’s injury, (3) any effort

made by the officer to temper or to limit the amount of force,” (4) the severity

of the security problem at issue, (5) the threat reasonably perceived by the

officer, and (6) whether the plaintiff was actively resisting.” Jd.

Application of the King/sey factors shows that the Jail Officers’ use of

force to carry Anita into the cell and remove her ring while she was resisting

was objectively reasonable. From the moment Anita arrived at the jail, she

was noncompliant. The Jail Officers gave her several opportunities to walk

before carrying her into the cell. Once in the cell, the Jail Officers gave her

the opportunity to release her fist so they could remove the ring. She refused.

There is no question that the Jail Officers have an interest in maintaining the

safety of not only themselves but also the detainees by emptying the de-

tainee’s pockets and removing any jewelry. The Jail Officers reasonably used

limited force necessary to obtain compliance with their lawful instructions.

Anita has provided no evidence that she was injured by the limited amount of

force used. The Jail Officers applied pressure to Anita to obtain compliance

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with their standard safety procedures and only increased the force after warn-

ing Anita and being met with continued resistance. The Jail Officers are enti-

tled to summary judgment on Anita’s Fourteenth Amendment excessive

force claim.

VI

The Deputies and Jail Officers also argue they are entitled to qualified

immunity from all of Plaintiffs’ claims because the Plaintiffs failed to show

that their actions violated clearly established constitutional rights. Dkt. 140

at 10. Qualified immunity protects police officers and public officials “from

liability for civil damages insofar as their conduct does not violate clearly es-

tablished statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citation

omitted). When a defendant asserts qualified immunity, the plaintiff must re-

spond by showing that (1) a reasonable jury could find facts supporting a vio-

lation of a constitutional right and (2) the right was clearly established at the

time of the violation. Wilkins v. City of Tulsa, 33 F.4th 1265, 1272 (10th Cir.

2022) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). If the plaintiff

fails to establish either prong, the defendant must be granted qualified im-

munity. See, e.g., Tolan v. Cotton, 572 U.S. 650, 656 (2014).

Plaintiffs’ response to the Defendants’ assertion of qualified immunity

is puzzling. They do nothing to address the standard outlined above. Instead,

they respond as follows:

Defendants MICHAEL KITCHENS et al. plead qualified im-

munity, claiming a reasonableness standard as to their conduct.

See Defs. Mot. at 19 [Doc.122], quoting Murrell v. Sch. Dist. No.

1, 186 F.3d 1238, 1251 (10th Cir. 1999). However, Circuit Judge

Anderson’s concurrence emphasized the test of “deliberate in-

difference” as part of that calculus. Jd. at 1252. As argued, su-

pra, the test in the Tenth Circuit for deliberate indifference has

objective and subjective components. Strain v. Regalado, 977

F.3d 984, 989 (10th Cir. 2020). In this matter, Defendants were

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deliberate[ly] indifferent to Plaintiffs’ insistence that no crime

had been committed, to their physical and emotional needs,

etc. Defendants—especially Deputy Ballard and Deputy Da-

vis—displayed unjustified anger and aggression and failed to

employ all of the Use Force standards.

Dkt. 132 at 24.

Plaintiffs’ response fails to cite authority to overcome the Defendants’

assertion of qualified immunity. Where a plaintiff fails to discuss whether the

rights were clearly established or fails to cite legal authority in response to an

assertion of qualified immunity, the defendant is entitled to qualified immun-

ity. Rojas v. Anderson, 727 F.3d 1000, 1004-05 (10th Cir. 2013); see also Com-

prehensive Addiction Treatment Ctr., Inc. v. Leslea, 552 F. App’x 812, 816 (10th

Cir. 2014) (defendants were entitled to qualified immunity where the district

court found that plaintiffs “[had] not cited any authority in which courts have

found that a plaintiff’s constitutional right ... was ‘clearly established’ in anal-

ogous factual situations”); Smith ». McCord, 707 F.3d 1161, 1162 (10th Cir.

2013) (plaintiff failed to meet two-part burden where “[h]is response brief

failed even to include the terms ‘qualified immunity’ or ‘clearly estab-

lished’”); Gutierrez ». Cobos, No. 12-980 JH/GBW, 2015 WL 13239103, at

*18 (D.N.M. May 1, 2015) (granting summary judgment where “ Plaintiffs’

response fail[ed] to include any legal authority to show that ... the right at

issue was Clearly established at the time”). Plaintiffs’ single-paragraph re-

sponse fails to carry the heavy burden necessary to overcome Defendants’

qualified immunity defense. Therefore, Defendants are entitled to qualified

immunity on all claims, and their motions for summary judgment are granted.

VIII

Finally, the Court turns to Plaintiff’s Monell claim against Sheriff

Owen. A suit against a sheriff in his official capacity is another way of pleading

an action against the county. Burke v. Regalado, 935 F.3d 960, 998 (10th Cir.

2019) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).

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No. 22-cv-230

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But a county cannot “be held liable under § 1983 solely because it employs a

tortfeasor.” Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397,

403 (1997). To establish municipal liability, a plaintiff must show not only that

the employees committed a constitutional violation but also that a policy or

custom was the moving force behind the constitutional deprivations. Myers ».

Okla. Cty. Bd. of Cty. Comm’rs, 151 F.3d 1313, 1320 (10th Cir. 1998). A policy

or custom can include:

(1) a formal regulation or policy statement;

(2) an informal custom amounting to a widespread practice that, alt-

hough not authorized by written law or express municipal policy, is

so permanent and well settled as to constitute a custom or usage

with the force of law;

(3) the decisions of employees with final policymaking authority;

(4) the ratification by such final policymakers of the decisions—and

the basis for them—of subordinates to whom authority was dele-

gated subject to these policymakers’ review and approval; or

(5) the failure to adequately train or supervise employees, so long as

that failure results from “deliberate indifference” to the injuries

that may be caused.

Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quo-

tation marks and citations omitted).

Plaintiffs have not established constitutional violations by either the

Deputies or the Jail Officers; accordingly, Plaintiffs’ claims against the mu-

nicipality also fail. See Cummisky »v. Mines, 248 F. App’x 962, 967 (10th Cir.

2007) (affirming grant of summary judgment to municipality where no con-

stitutional rights were violated). Furthermore, even if they could establish a

constitutional violation, Plaintiffs have failed to present evidence of any cus-

tom, policy, or lack of training that led to the alleged constitutional violations.

See Carr v. Castle, 337 F.3d 1221, 1231-32 (10th Cir. 2003). Thus, Sheriff

Owen is entitled to summary judgment on Plaintiffs’ Monell claims.

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IX

Plaintiffs have failed to provide sufficient evidence upon which a rea-

sonable jury could determine that the Deputies or the Jail Officers violated

their constitutional rights, and in any event, the Deputies and Jail Officers are

entitled to qualified immunity from Plaintiffs’ claims. Accordingly, the Dep-

uties and Jail Officers’ motion for summary judgment [Dkt. 122] is granted.

Without an underlying constitutional violation or unconstitutional custom,

policy, or training, Sheriff Owen’s motion for summary judgment [Dkt. 120]

must also be granted. With no claims remaining, Defendants’ motion in

limine [Dkt. 143] is denied as moot.

DATED this 17th day of June 2098

Joun D. RUSSELL

United States District Judge

24