Birchfield v. Mulkey

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

MICHAEL BIRCHFIELD, II, )

)

Plaintiff, )

)

v. ) Case No. 24-CV-0256-CVE-JFJ

)

ETHAN MULKEY, )

ALEX WILSON, and )

TIM TIPTON, )

)

Defendants. )

OPINION AND ORDER

Before the Court is defendant Tim Tipton’s motion to dismiss (Dkt. # 11) plaintiff Michael

Birchfield’s first amended complaint, plaintiff’s response (Dkt. # 23), and Tipton’s reply (Dkt. # 25).

Tipton argues that he is entitled to qualified immunity from plaintiff’s claims under 42 U.S.C. §

1983, and that plaintiff failed to state a claim upon which relief can be granted under federal law.

Dkt. # 11. Plaintiff responds that he alleged sufficient facts to state a plausible claim for relief based

on Tipton’s supervisory liability for his employees’ use of excessive force and wrongful arrest of

plaintiff. Dkt. # 23. Additionally, plaintiff responds that Tipton is not entitled to qualified immunity

because plaintiff sufficiently pleaded that Tipton violated his clearly established Fourth Amendment

rights. Id. Tipton replies that plaintiff fails to meet his burden of showing that a reasonable officer

in Tipton’s position would have known that his conduct violated clearly established law. Dkt. # 25.

The Court finds that plaintiff fails to overcome Tipton’s qualified immunity defense, and the Court

grants Tipton’s motion to dismiss (Dkt. # 11).

1.

On May 28, 2022, plaintiff was driving “his motorcycle westbound on Southwest Boulevard

near 64th West Avenue in Tulsa, [Oklahoma].” Dkt. #5, at 2. Oklahoma Highway Patrol (OHP)

Trooper Ethan Mulkey and his passenger, OHP Trooper Alex Wilson, were driving in the opposite

direction in an OHP vehicle, passing plaintiff's motorcycle. Id. at 3. After the vehicles passed each

other, Mulkey executed a u-turn and began following plaintiff. Id. Plaintiff claims that he activated

his turn signal and “turned left onto 64th West Ave[nue].” Id. Plaintiff states that he then slowed

to acomplete stop at a stop sign on 64th West Avenue before continuing straight. Id. Plaintiff drove

onto his driveway, dismounted his motorcycle, gestured his middle finger towards the troopers’

vehicle as it passed his house, and walked toward the front door of his residence. Id. Plaintiff

alleges that he did not violate any traffic or other law, and that Mulkey never turned on the OHP

vehicle’s lights or sirens or otherwise attempted to pull him over to effectuate a traffic stop. Id.

Observing plaintiffs gesture, Mulkey reversed his vehicle and parked in front of plaintiffs

house. Id. Mulkey and Wilson exited their vehicle and requested that plaintiff provide his driver’s

license to them. Id. Plaintiff claims that he presented his valid Georgia driver’s license to the

troopers. Id. Mulkey asked plaintiff “how long he had lived in Oklahoma.” Id. at 4. Plaintiff

replied that “he did not need to tell Mulkey that information.” Id. Mulkey informed plaintiff that

“he was under arrest and would be going to jail.” Id. Plaintiff again asserted that “Mulkey did[ not]

need to know how long [p]laintiff had lived in Oklahoma.” Id. In response, Mulkey restated that

plaintiff “was under arrest.” Id. Plaintiff then asked Mulkey “why he was being arrested.” Id.

Plaintiff claims that Mulkey responded to his question by grabbing plaintiffs arm, using an “arm bar

technique,” and then using a “brachial stun” technique, which included hitting plaintiff's neck. Id.

Plaintiff alleges that the troopers violently pushed plaintiff into his truck parked in his driveway,

struck him multiple times, slammed him to the ground, and handcuffed him. Id. Plaintiff claims that

during this interaction he was compliant and did not resist, attempt to flee, or behave in a threatening

manner. Id. As a result of this interaction, plaintiff states that he “suffered injuries, including, but

not limited to, significant physical injuries, physical pain and suffering, mental anguish, and medical

expenses.” Id. at 5.

The troopers placed plaintiff under arrest for “[(]1) resisting arrest; [(]2) obstruction; [(]3)

following too closely; [(]4) improper left turn; and [(]5) DUI drug intoxication.” Id. at 4. While the

troopers arrested plaintiff for DUI drug intoxication, plaintiff alleges that the troopers did not

administer a field sobriety or breathalyzer test. Id. The district attorney’s (DA) office filed charges

against plaintiff for (1) resisting arrest, (2) obstruction, (3) following too closely, and (4) improper

left turn, but declined to file the (5) DUI drug intoxication charge. Id. at 5. In December 2023, the

DA dismissed all of the charges at the state’s request. Id.

On May 28, 2024, plaintiff filed a complaint alleging claims for relief against the arresting

officers, Mulkey and Wilson, and OHP Commissioner Tipton in their individual capacities under

42 U.S.C. § 1983. Dkt. # 2. On June 12, 2024, plaintiff filed an amended complaint to correct

Trooper Mulkey’s first name. Dkt. # 5. In the amended complaint, plaintiff alleges four claims for

relief: (1) individual liability claims against Mulkey and Wilson for excessive force in violation of

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the Fourth Amendment and a supervisory liability claim against Tipton for excessive force;1 (2)

individual liability claims against Mulkey and Wilson for wrongful arrest in violation of the Fourth

Amendment as applied to the states through the Fourteenth Amendment and a supervisory liability

claim against Tipton for wrongful arrest in violation of the Fourth Amendment as applied to the

states through the Fourteenth Amendment; (3) a malicious prosecution claim against Mulkey; and

(4) First Amendment retaliation claims against Mulkey and Wilson. Id. at 5, 6, 7, 8, 9, 10.

Plaintiff bases his supervisory liability claims against Tipton on his supervisory position in

OHP, his direct involvement in and responsibility for creating and implementing policies, oversight,

and training of OHP employees on excessive force, probable cause, and lawful arrests, and his failure

to train and supervise his subordinates. Id. at 2, 6, 8, 9. Plaintiff alleges that Tipton created a

dangerous environment for all citizens who interacted with OHP personnel through his deliberate

indifference to the obvious need for additional and different training and supervision regarding the

use of force, probable cause, and lawful arrests. Id. at 6, 8. Additionally, plaintiff claims that Tipton

knew of the OHP troopers’ policy, practice, and/or custom of using excessive force on compliant,

non-threatening, and subdued civilians and arresting citizens without probable cause and, yet,

allowed the practice to continue unabated. Id. at 6, 9. More specifically, plaintiff alleges Tipton

personally ensured that the troopers who used excessive force or made unlawful arrests were not

punished. Id. at 6, 9. Further, plaintiff claims that Tipton punished an OHP captain for attempting

1 Plaintiff fails to identify the constitutional provision under which he brings his excessive

force claim against Tipton. As this claim pertains to plaintiff’s arrest, the Court analyzes the

this claim under the Fourth Amendment. Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir.

2010) (“[T]he Fourth Amendment protects against ‘unreasonable searches and seizures’ and

pertains to the events leading up to and including an arrest of a citizen previously at liberty

. . .”).

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to discipline Mulkey for using excessive force on multiple occasions, including plaintiff’s arrest,

during 2022. Id. at 7. Plaintiff alleges that Tipton acted under color of law in committing the

complained of acts, and Tipton’s failure to train and supervise his subordinates directly and

proximately caused violations of plaintiff’s federally protected rights. Id. at 6-7, 9.

On July 11, 2024, Tipton filed a motion to dismiss the claims against him (counts one and

two), asserting that he is entitled to qualified immunity and that plaintiff failed to state a claim upon

which relief can be granted. Dkt. # 11. Plaintiff filed a response (Dkt. # 23), and Tipton filed a reply

(Dkt. # 25). On September 23, 2024, the Court entered a minute order that it would not rule on

Tipton’s motion to dismiss until the Tenth Circuit issued a decision in Dennis v. Pazen, No. 23-1313

(10th Cir.). On May 13, 2025, the Tenth Circuit issued its decision, Dennis v. Pazen, No. 23-1313,

2025 WL 1375635 (10th Cir. May 13, 2025) (unpublished),2 and the Court now considers Tipton’s

motion to dismiss.

II.

In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine

whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is

properly granted when a complaint provides no “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its

face[,]” and the factual allegations “must be enough to raise a right to relief above the speculative

level.” Id. at 555, 570 (citations omitted). “Once a claim has been stated adequately, it may be

2 While unpublished decisions are not precedential, the Court may cite this and other

unpublished decisions for their persuasive value. 10th Cir. R. 32.1(A).

5

supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563.

Although decided within an antitrust context, Twombly “expounded the pleading standard for ‘all

civil actions.’” Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). For the purpose of making the

dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true,

even if doubtful in fact, and must construe the allegations in the light most favorable to a claimant.

Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007);

Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court

need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd.

of Cnty. Comm’rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without

supporting factual averments are insufficient to state a claim on which relief can be based.” Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

III.

Plaintiff brings two supervisory liability claims against Tipton in his individual capacity: a

claim for excessive force in violation of the Fourth Amendment (count one) and a claim for wrongful

arrest in violation of the Fourth Amendment as applied to the states through the Fourteenth

Amendment (count two). Dkt. # 5 at 5, 6, 7, 8. Tipton moves to dismiss counts one and two against

him on the ground that he is entitled to qualified immunity from plaintiff’s claims because plaintiff’s

broad and conclusory allegations fail to affirmatively link Tipton’s actions to the alleged

constitutional violations. Dkt. # 11, at 1, 5. Plaintiff responds that he plausibly alleged that Mulkey

and Wilson violated plaintiff’s Fourth Amendment rights, he adequately alleged Tipton’s supervisory

liability, and Tipton is not entitled to qualified immunity. Dkt. # 23, at 6, 8, 10.

6

The Court will initially address plaintiff's argument that the Court should apply the relaxed

motion to dismiss standard of review articulated in Thomas v. City of Galveston, 800 F. Supp. 2d

826, 842-43 (S.D. Tex. 2011). Dkt. # 23, at 4-5. In Thomas, the court explained that, “[i]n the

context of municipal liability, as opposed to individual officer liability, ... only minimal factual

allegations should be required at the motion to dismiss stage. Moreover, those allegations need not

specifically state what the policy is....” Thomas, 800 F. Supp. 2d at 842-43. Plaintiff supports his

argument by citing a series of cases in which courts have applied the Thomas standard in the

municipal liability context.* Dkt. # 23, at 5. The Court has found no instance of a court applying

the Thomas standard to a supervisory liability claim. Because plaintiff brings his claims under a

supervisory liability theory, not a municipal liability theory, the Thomas standard does not apply.’

3 Plaintiff cites these cases in the following order: Gooding v. Ketcher, 838 F. Supp. 2d 1231,

1241 (N.D. Okla. 2012); D.G. ex. rel. Bradley v. Westville Pub. Sch. Dist. No. I-11 of Adair

Cnty., No. CIV-18-045-RAW, 2018 WL 4323917, at *2 (E.D. Okla., Sept. 10, 2018);

Schaefer v. Whitted, 121 F. Supp. 3d 701, 718 (W.D. Tex. 2015); Pena v. Dall. Cnty. Hosp.

Dist., No. 3:12-CV-439-N, 2013 WL 11299229, at *10 n.16 (N.D. Tex. June 26, 2013);

Taylor v. RED Dev., LLC, No. 11-2178-JWL, 2011 WL 3880881, at *3-4 (D. Kan. Aug. 31,

2011); E.G. ex. rel. Gonzalez v. Bond, No. 1:16-CV-0068-BL, 2016 WL 8672774, at □□□□

(N.D. Tex. Sept. 9, 2016), R. & R. adopted as modified E.G. ex. rel. Gonzales v. Bond, No.

1:16-CV-068-C, 2017 WL 129019 (N.D. Tex. Jan. 13, 2017). Dkt. #23, at 5. Plaintiff also

cites “Simms v. Turn Key Health Clinics, Inc., et al., No. CIV-23-780-J, (W.D. Okla. Oct.

24, 2023),” which does not exist. Id. The Court believes plaintiff intended to cite an order,

Simms v. Bd. of Cnty. Cmm’rs for Okla. Cnty., No. CIV-23-780-J, 7 (W.D. Okla. Oct. 24,

2023) (unpublished order). The cited cases and the order applied the Thomas standard within

the municipal liability context.

‘ Plaintiff does not sue Tipton in his official capacity. When a plaintiff sues a defendant in his

official capacity under § 1983, the suit is “essentially another way of pleading an action

against the county or municipality [the official] represent[s].” Porro v. Barnes, 624 F.3d

1322, 1328 (10th Cir. 2010). Thus, courts apply the standard of liability for municipalities

and counties to claims against officials in their official capacity. Id. at 1328. To state a

plausible municipal liability claim pursuant to Monell v. Dep’t of Soc. Servs. of City of New

York, 436 U.S. 658 (1978) (Monell), a plaintiff must allege facts showing “(1) an official

(continued...)

A.

Section 1983 provides a cause of action against any “person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any

citizen of the United States .. . thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and law” of the United States. “The purpose of § 1983 is to deter state

actors from using the badge of authority to deprive individuals of their federally guaranteed rights

and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).

The Supreme Court has held that “government officials performing discretionary functions generally

are shielded from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v, Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity shields public officials from facing the burdens of litigation and is an

immunity from suit, not simply a defense to a plaintiff's claims. Serna v. Colo. Dep’t of Corr., 455

F.3d 1146, 1150 (10th Cir. 2006). The Tenth Circuit requires a plaintiff to satisfy a two-step burden

to establish that the defendant is not entitled to qualified immunity. Burke v. Regalado, 935 F.3d

‘ (...continued)

policy or custom (2) caused the plaintiff’ s constitutional injury and (3) that the municipality

enacted or maintained that policy with deliberate indifference to the risk of that injury

occurring.” George ex. rel. Bradshaw v. Beaver Cnty. ex rel. Beaver Cnty. Bd. of Comm’rs,

32 F.4th 1246, 1253 (10th Cir. 2022) (citing Schneider v. City of Grand Junction Police

Dep’t, 717 F.3d 760, 769-71 (10th Cir. 2013)). While plaintiff attempts to merge the

treatment of municipal and supervisory liability claims, the two theories of liability are

distinct. See Burke v. Regalado, 935 F.3d 960, 995, 999 (10th Cir. 2019) (merging all of the

elements of municipal and supervisory liability in that case because (1) the plaintiff alleged

that the defendant maintained a policy or custom that violated the Fourteenth Amendment,

an element required under both theories, and (2) supervisory liability claims arising under

the Fourteenth Amendment require the defendant to possess the same state of mind as a

Monell claim—deliberate indifference).

960, 1002 (10th Cir. 2019). A plaintiff must show that the defendant’s actions violated a specific

constitutional right, and that constitutional right was clearly established when the conduct occurred.

Toevs v. Reid, 685 F.3d 903, 909 (10th Cir. 2012). Thus, at the motion to dismiss stage, plaintiff

bears the burden to allege sufficient facts to plausibly show (1) Tipton violated his constitutional

rights, and (2) the law giving rise to his claim was clearly established at the time the acts occurred.

Luethje v. Kyle, 131 F.4th 1179, 1187 (10th Cir. 2025).

To overcome the first qualified immunity prong on a motion to dismiss, plaintiff must

sufficiently allege facts showing that Tipton violated plaintiff’s Fourth Amendment right to be free

from excessive force and wrongful arrest under a supervisory liability theory. Dodds v. Richardson,

614 F.3d 1185, 1198 (10th Cir. 2010). “Because vicarious liability is inapplicable to . . . § 1983

suits, a plaintiff must plead that each Government-official defendant, through the [defendant]’s own

individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). To

hold defendant-supervisors individually liable for constitutional deprivations committed by their

subordinates, an affirmative link must exist “between the unconstitutional acts by their subordinates

and [the defendant’s] ‘adoption of any plan or policy . . . –– express or otherwise –– showing their

authorization or approval of such misconduct.’” Dodds, 614 F.3d at 1200-01 (quoting Rizzo v.

Goode, 423 U.S. 362, 371 (1976)). In other words, to “impose liability upon a

defendant-supervisor,” a plaintiff must allege facts “show[ing] that ‘(1) the defendant promulgated,

created, implemented[,] or possessed responsibility for the continued operation of a policy that (2)

caused the complained of constitutional harm, and (3) acted with the state of mind required to

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establish the alleged constitutional deprivation.””” Brown v. Montoya, 662 F.3d 1152, 1163-64 (10th

“The [Supreme] Court in Igbal explained that the factors necessary to establish a § 1983

violation depend upon the constitutional provision at issue... [,]’” and, thus, a plaintiff

cannot “succeed on a § 1983 claim against [a d]efendant by showing that as a supervisor he

behaved ‘knowingly or with deliberate indifference that a constitutional violation would

occur’ at the hands of his subordinates, unless that is the same state of mind required for the

constitutional deprivation he alleges.” Dodds, 614 F.3d at 1204. The Supreme Court’s

decision in Iqbal “muddied further the[] already cloudy waters” surrounding § 1983 claims

based on supervisory liability because it failed to “address constitutional violations that are

based on a state of mind other than specific intent,” like Fourth Amendment violations. See

id, at 1209-11 (Tymkovich, J., concurring). Tipton and plaintiff's confusion regarding the

state of mind required to satisfy Dodds in this case demonstrates this lack of clarity.

Tipton argues that the state of mind required to plead a supervisory liability claim in this case

is specific intent, or the state of mind required to commit the underlying offense. Dkt. #11,

at 11-12. Only the second standard is correct. See Dodds, 614 F.3d at 1204. In reaching his

erroneous conclusion, Tipton misinterprets Supreme Court and Tenth Circuit precedent.

First, Tipton attempts to apply the state of mind required for First, Fifth, Eighth, and

Fourteenth Amendment violations to defend against plaintiff's Fourth Amendment claims.

Dkt. # 11, at 8-12; Iqbal, 556 U.S. at 669, 676 (First and Fifth Amendments); Gray v. U. of

Colo. Hosp. Auth., 672 F.3d 909, 912 (10th Cir. 2012) (Fourteenth Amendment); Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 836 (1998) (Fourteenth Amendment); Daniels v.

Williams, 474 U.S. 327, 328 (1968) (Fourteenth Amendment); Serna, 455 F.3d at 1149, 1152

(Eighth Amendment); Porro v. Barnes, 624 F.3d 1322, 1326-28 (10th Cir. 2010) (Fourteenth

Amendment); Browder v. City of Albuquerque, 787 F.3d 1076, 1078, 1080 (10th Cir. 2015)

(Fourteenth Amendment) (The Court notes that Tipton failed to cite Browder when he block-

quoted text from the case. Dkt. # 11, at 9.)

Second, Tipton appears to conflate the Dodds state of mind requirement with the prohibition

against respondeat superior liability for supervisory liability claims. See e.g., Dkt. # 25, at

2, 4-6. In Webb v. Thompson, 643 F. App’x 718, 725 (10th Cir. 2016), the defendant, like

Tipton, argued that Fourth Amendment supervisory liability claims require the defendant to

possess the mens rea of “intent” because supervisory liability under § 1983 requires “‘a

deliberate and intentional act on the part of the supervisor to violate the plaintiff's legal

rights.” Id. (unpublished) (quoting Wilson v. Montano, 715 F.3d 847, 858 (10th Cir. 2013)).

However, the Tenth Circuit explained that the language the defendant quoted “merely

reinforce[d] that § 1983 does not authorize respondeat superior liability... .”’ Id.

(continued...)

10

Cir. 2011) (quoting Dodds, 614 F.3d at 1199).

To overcome the second qualified immunity prong, plaintiff must allege facts sufficient to

show that the law giving rise to his claim was clearly established at the time the acts occurred. See

Luethje v. Kyle, 131 F.4th 1179, 1187-88 (10th Cir. 2025); Brown v. City of Tulsa, 124 F.4th 1251,

1265 (10th Cir. 2025). The plaintiff bears the burden of showing that “the contours of the right

[were] sufficiently clear that a reasonable official would [have] underst[ood] that what he [wa]s

doing violates that right.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). In light of the

Supreme Court’s decision in Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam), the Tenth Circuit has

explained that a plaintiff can show that a right is clearly established in the following ways:

(...continued)

Finally, Tipton mischaracterizes Novitsky v. City of Aurora, 491 F.3d 1244, 1254 (10th Cir.

2007), and Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989), as requiring plaintiff to plead

that Tipton had the “specific intent to violate [plaintiffs constitutional rights” or the “intent

to cause harm.” Dkt. # 11, at 9; Dkt. # 25, at 6. In Novitsky, the Tenth Circuit held that an

officer was not directly liable for violating the Fourth Amendment’s prohibition of excessive

force because the officer had not directed or assisted in applying the force. Novitsky, 491

F.3d at 1254. The Circuit did not address the officer’s intent in reaching its holding. Further,

the Circuit’s holding does not apply in this case because plaintiff sues Tipton under a theory

of supervisory liability, which allows a plaintiff to hold a defendant liable for his policies,

not his direct contact with the plaintiff. Dodds, 614 F.3d at 1195, 1199. In Brower, the

Supreme Court explained that a “[v]iolation of the Fourth Amendment requires an

intentional acquisition of physical control” when analyzing whether the defendants had

seized the plaintiff under the Fourth Amendment. Brower, 489 U.S. at 595-96. As Tipton

does not contest that a seizure occurred, this statement is inapplicable to this case.

Plaintiff responds that a defendant must possess the state of mind of deliberate indifference

to violate the Fourth Amendment’s prohibitions of excessive force and wrongful arrest under

a supervisory liability theory. Dkt. # 23, at 6,10. However, like Tipton, plaintiff relies on

cases that do not involve Fourth Amendment violations and thus, do not apply to this case.

See e.g., Doe No. 1 v. Boulder Valley School Dist. No. Re-2, No. 11—cv-02107-PAB-KLM,

2012 WL 4378162, at *2, *9 (D. Colo. 2012) (Fourteenth Amendment); Perry v. Durborow,

892 F.3d 1116, 1122 (10th Cir. 2018) (Eighth and Fourteenth Amendment).

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[First,] [a] right is clearly established when a Supreme Court or Tenth Circuit

decision is on point, or if the clearly established weight of authority from other courts

shows that the right must be as the plaintiff maintains. The relevant precedent is

considered on point if it involves materially similar conduct or applies with obvious

clarity to the conduct at issue. [Second,] [a] case directly on point is not necessary

if existing precedent has placed the statutory or constitutional question beyond

debate. Thus, general statements of the law can clearly establish a right for qualified

immunity purposes if they apply with obvious clarity to the specific conduct in

question.

Luethje, 131 F.4th at 1187-88 (internal citations and quotations omitted); Brown, 124 F.4th at 1265.

Therefore, while district courts should not define a constitutional nght “at a high level of

generality[,]” Perry v. Durborow, 892 F.3d 1116, 1123 (10th Cir. 2018), “there can be the rare case

or ‘extreme circumstance’ where the conduct in question has not previously been held unlawful, but

a government official may still have notice that their conduct violates a constitutional right because

it is so apparent as to apply with obvious clarity[,]” Brown 124 F.4th at 1265. See also Schwartz

for Est. of Finn v. Gentempo, No. 23-1393, 2025 WL 1541173, *2 (10th Cir. May 30, 2025)

(unpublished).

B.

To defeat Tipton’s qualified immunity defense and state a claim upon which relief can be

granted, plaintiff must allege sufficient facts to plausibly show that (1) Tipton violated plaintiffs

Fourth Amendment rights, and (2) plaintiff's Fourth Amendment rights were clearly established at

the time of the violation.® Toevs, 685 F.3d at 909. The Court will first address whether plaintiff's

Fourth Amendment rights were clearly established at the time of the violation. See Pearson v.

6 As the motion to dismiss is devoid of any position as to whether the troopers violated

plaintiff's Fourth Amendment rights, the Court assumes for the purpose of this motion that

plaintiff sufficiently pleaded that the troopers used excessive force against plaintiff and

wrongfully arrested him.

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Callahan, 555 U.S. 223, 242 (2009) (holding that “[b]ecause the two-step Saucier procedure is often,

but not always, advantageous, the judges of the district courts and the courts of appeals are in the best

position to determine the order of decisionmaking that will best facilitate the fair and efficient

disposition of each case.”).

To overcome Tipton’s qualified immunity defense, plaintiff has the burden to show that his

constitutional rights were clearly established when the incident giving rise to the alleged use of

excessive force and wrongful arrest occurred. Thomas, 765 F.3d at 1194. Plaintiff argues that he

has demonstrated that “the” right defendant violated was clearly established in May 2022.7 Dkt. #

23, at 12. However, plaintiff fails to cite specific cases establishing a violation of his clearly

established rights. Id. Instead, plaintiff impliedly suggests that the Court should apply general

constitutional principles to find that any reasonable officer in Tipton’s position would have realized

his conduct offends the Constitution.8 Id. at 12-13. Because plaintiff does not distinguish between

his excessive force and wrongful arrest claims when making his arguments as to the clearly

established law prong, the Court will analyze the claims simultaneously.

The Court will first analyze each case plaintiff cites in the clearly established right portion

of his response to determine whether “a Supreme Court or Tenth Circuit decision is on point, or if

the clearly established weight of authority from other courts shows that the right must be as the

plaintiff maintains.” Luethje, 131 F.4th at 1187. The first is McClelland v. Facteau, 610 F.2d 693

7 While plaintiff fails to articulate to which “right” he refers, the Court will assume he refers

to both his Fourth Amendment rights to be free from excessive force and wrongful arrest.

8 The Court notes that plaintiff fails to analogize his case to any Tenth Circuit or Supreme

Court precedent or explain how general constitutional principles prohibited Tipton’s alleged

conduct. Dkt. # 23, at 12-13. Nevertheless, the Court will consider plaintiff’s vague

arguments.

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(10th Cir. 1979), in which the Tenth Circuit denied the police chief defendants’ motion for summary

judgment because a genuine issue of material fact’ existed as to whether the chiefs breached their

duty of supervision to correct misconduct because the plaintiff showed that the chiefs held ultimate

responsibility for the police department’s operations, and raised an inference that the chiefs had

adequate notice of prior misconduct by the offending officer through recent, serious, credible, and

publicized allegations. Id. at 697-98. The circuit reached this conclusion by applying an outdated

test for supervisory liability that held a defendant-supervisor liable under § 1983 if he “‘was in a

position of responsibility, knew or should have known of the misconduct, and yet failed to act to

prevent future harm.”’ See id. at 697; Rodriguez v. Serna, No. 1:17-CV-01147-WJ-LF, 2019 WL

2340958, *7 (D.N.M. June 3, 2019) (expressing “serious doubts” as to the validity of McClelland

“given the Tenth Circuit’s more recent case law . . . post-Iqbal”’). Post-Iqbal and Dodds, a panel of

the Tenth Circuit rejected a plaintiff's claim that relied on the McClelland language to establish

supervisory liability, reiterating Dodd’s requirement that the plaintiff must plausibly allege that “the

defendant promulgated, created, implemented, or possessed responsibility for the continued

operation of [a] policy.” Pemberton v. Patton, 673 F. App’x 860, 868-69 (10th Cir. 2016)

(unpublished) (quoting Dodds, 614 F.3d at 1199) (disregarding plaintiff's argument that he

sufficiently pleaded liability under Dodds by alleging that the defendant, the director of the

Oklahoma Department of Corrections, “knew, or should have known, that the deprivation [the

plaintiff allegedly suffered] was a policy or custom at [his correctional facility,] and [the defendant]

did nothing to stop it.”). Thus, McClelland does not clearly establish that Tipton violated plaintiff’ s

In 1979, the FED. R. CIv. P. 56 language referred to a “genuine issue of material fact,” as

opposed to a “genuine dispute as to any material fact” in the current rule version.

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rights because the McClelland court relied on a lower and outdated supervisory liability standard to

deny the defendant’s motion for summary judgment.

Plaintiff cites Rizzo, 423 U.S. 362, in which the Supreme Court held that the plaintiffs were

not entitled to the affirmative equitable relief fashioned by the district court to address general police

misconduct. The plaintiffs in Rizzo asserted claims against the police commissioner, the mayor, and

the city managing director for authorizing or encouraging a pervasive pattern of illegal and

unconstitutional mistreatment by police officers. Id, at 366-67. However, the Supreme Court found

that “no affirmative link [existed] between the occurrence of the various incidents of police

misconduct and the adoption of any plan or policy by [the defendants] express or otherwise showing

their authorization or approval of such misconduct.” Id. at 371. As the Supreme Court did not

address whether the defendants violated any of the plaintiffs’ constitutional rights in Rizzo, this case

does not clearly establish that Tipton violated plaintiff's Fourth Amendment rights.

Plaintiff also cites four cases with facts inapposite to the current case: Taylor, 592 U.S. 7;

Hope v. Pelzer, 536 U.S. 730 (2002); United States v. Lanier, 520 U.S. 259 (1997); and Wright v.

McMann, 460 F.2d 126 (2d Cir. 1972). Unlike the current case, the plaintiffs in Taylor, Hope, and

Wright alleged violations of the Eighth Amendment. Taylor, 592 U.S. at 8-9 (correctional officers

housed the plaintiff in deplorably unsanitary conditions); Hope, 536 U.S. at 733 (prison guards

punished the plaintiff by handcuffing him to a hitching post on two occasions); Wright, 460 F.2d at

134-35 (prison warden knew and held ultimate responsibility for poor strip cell conditions).

Similarly, Lanier concerned a criminal defendant’s challenge to his prosecution in which he argued

that he lacked fair notice that his conduct violated the Fourteenth Amendment. Lanier, 520 U.S. at

262, 271-72 (criminal defendant, a state judge, sexually assaulted judicial employees and litigants).

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Thus, these cases cannot clearly establish Tipton violated plaintiff's Fourth Amendment right to be

free from excessive force and wrongful arrest.

The most analogous case plaintiff cites is Buck v. City of Albuquerque, 549 F.3d 1269 (10th

Cir. 2008). In Buck, the Tenth Circuit held that the defendant-supervisor was not entitled to

qualified immunity and could be found liable under a supervisory liability theory for his officers’ use

of excessive force and wrongful arrests. Id. at 1277, 1287, 1291-92. Unlike in the present case, the

defendant-supervisor in Buck was personally involved in the plaintiffs’ arrests, authorized the use

of force against compliant demonstrators like the plaintiffs, and “held a tight reign on his officer’s

actions” while acting as the on-scene supervisor. Id. at 1287-88. 1291-92. As plaintiff does not

allege Tipton had an active role in plaintiffs arrest, Buck does not clearly establish that Tipton

violated plaintiff's rights. See Dennis v. Pazen, No. 23-1313, 2025 WL 1375635, at *3 (10th Cir.

May 13, 2025) (distinguishing Buck from the case before the Tenth Circuit because the defendant

“was not physically present” at the scene, did not “directly supervise” the conduct of the officers at

the scene, and authorized arrests and the use of force “only in the abstract and from a distance”).

As plaintiff fails to cite a factually analogous case, the Court will assess whether Tipton’s

alleged conduct constitutes a “rare case or ‘extreme circumstance’ where the conduct in question has

not previously been held unlawful, but a government official [would] still have notice that their

conduct violates a constitutional right because it is so apparent as to apply with obvious clarity.”

Brown, 124 F.4th at 1265; see, e.g., Taylor, 592 U.S. 7, 9 (2020) (per curiam) (“[N]o reasonable

correctional officer could have concluded that, under the extreme circumstances of this case, it was

constitutionally permissible to house [the plaintiff] in such deplorably unsanitary conditions for such

an extended period of time.”); Rosales v. Bradshaw, 72 F.4th 1145, 1147, 1157 (10th Cir. 2023)

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(holding that the defendant’s conduct was obviously unconstitutional where the defendant, an “off-

duty, out of uniform” sheriff’s deputy driving his personal vehicle with his child in the passenger

seat, declined backup assistance and followed the plaintiff all the way home “for no law-enforcement

purpose . . ., blocked [the plaintiff] in his own driveway, began yelling aggressively at [the plaintiff],

and then pointed a gun at [the plaintiff]”). The Fourth Amendment protects “the right of the people

to be secure . . . against unreasonable searches and seizures . . . .” U.S. CONST. amend. IV. Thus, a

defendant may use only reasonable force when arresting an individual, and may effectuate a

warrantless arrest only if he “‘has probable cause to believe that a person committed a crime.’”

Graham v. Connor, 490 U.S. 386, 396 (1989) (excessive force); Cortez v. McCauley, 478 F.3d 1108,

1115 (10th Cir. 2007) (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (wrongful

arrest)). As to excessive force claims, a plaintiff may fulfill the clearly established prong if “the

force [was] clearly unjustified based on the Graham factors[,]” which turn on “[t]he ‘reasonableness’

of a particular use of force . . . from the perspective of a reasonable officer on the scene . . . .”

Morris v. Noe, 672 F.3d 1185, 1197-98 (10th Cir. 2012); Graham, 490 U.S. at 396. As to wrongful

arrest claims, a plaintiff may fulfill the clearly established prong if the defendant did not arguably

have “an objectively reasonable belief that probable cause existed (even if that belief was mistaken).”

Hoskins v. Withers, 92 F.4th 1279, 1289 (10th Cir. 2024).

Accepting plaintiff’s well-pleaded allegations as true, these general prohibitions do not apply

with obvious clarity to Tipton’s conduct because he was not present when the troopers interacted

with plaintiff, did not have the opportunity to assess what force should be exercised or if probable

cause existed under the circumstances, and, at most, authorized the troopers to arrest and use force

against plaintiff “only in the abstract and from a distance.” See Perry, 892 F.3d at 1123 (explaining

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that a court’s analysis of a supervisor’s conduct must turn on whether “clearly established law □ □ .

would... have put a reasonable official in [the supervisor]’s position on notice that his supervisory

conduct would violate plaintiff's nghts”); Dennis, 2025 WL 1375635, *3-4 (holding that the

plaintiff, who raised a supervisory liability Fourth Amendment excessive force claim against the

police chief, “ha[d] not shown that ‘the violative nature of [the chief’s] particular conduct was

clearly established[,]’” because the plaintiff failed to plausibly allege that the chief “ordered,

directed, or even knew of .. .” the allegedly excessive use of force, and the defendant’s

“authorizations to arrest and use force were made only in the abstract and from a distance.”).

Plaintiff's only allegation connecting Tipton to his arrest is that Tipton disciplined an OHP captain

for attempting to discipline Mulkey for his interactions with and arrest of plaintiff (Dkt. # 5, at 7),

but this allegation does not show that Tipton was personally involved in plaintiff's arrest and

interactions with the troopers. Therefore, any reasonable official in Tipton’s position would not have

understood that his conduct violated the Constitution under the circumstances, and the Court finds

that plaintiff fails to plausibly allege that Tipton violated clearly established law. As plaintiff fails

to satisfy the second prong, the Court need not consider whether plaintiff's allegations satisfy the

first prong. Tipton is entitled to qualified immunity, and the Court grants Tipton’s motion to dismiss

(Dkt. #11).

IT IS THEREFORE ORDERED that Tipton’s motion to dismiss (Dkt. # 11) is granted.

Defendant Tim Tipton is terminated as a party defendant in this matter.

DATED this 24th day of June, 2025.

Cerin ¥ bafpl—

CLAIREV.EAGAN (J)

UNITED STATES DISTRICT JUDGE

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