Moreland

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

GARY SCOTT MORELAND,

REBECCA JANE NICHOLS, individually, and,

on behalf of and as next friend of J.W.S.

Plaintiffs,

v. Case No. 4:20-cv-00366-WPJ-SH

BOARD OF COUNTY

COMMISSIONERS OF THE COUNTY

OF MAYES, a political subdivision,

CITY OF CHOTEAU, a political subdivision,

BRETT ALAN MULL, individually, and

KEISHA OBERG, individually,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT MULL’S

MOTION FOR SUMMARY JUDGMENT AND QUALIFIED IMMUNITY

THIS MATTER comes before the Court upon Defendant Brett Alan Mull’s Motion for

Summary Judgment. Doc. 91. Following local law enforcement officers’ execution of a lawful

search warrant at their residence in August 2017, Plaintiffs Gary Scott Moreland and Rebecca Jane

Nichols, individually, and on behalf of Plaintiff Nichols’ minor son, J.W.S., filed a petition

(hereinafter, “the Complaint”) under 42 U.S.C. § 1983 in Oklahoma state court against the Board

of County Commissioners of Mayes County, City of Chouteau, Defendant Mull and officer Keisha

Oberg. Doc. 6-2. Defendants removed the action to federal court. Doc. 6. Mull is the sole

remaining defendant. See Docs. 33, 47, 49, 54.

Plaintiffs assert Defendant Mull’s conduct during the search violated their Fourth

Amendment right to be free from unreasonable seizure. Plaintiffs also seek to assert an additional,

unpled state law claim for conversion. Defendant Mull asserts that he is entitled to qualified

immunity on Plaintiffs’ § 1983 claim and argues that the Court should not consider Plaintiffs’

unpled conversion claim. In the alternative, should the Court consider the conversion claim,

Defendant Mull contends that he is immune under the Oklahoma Governmental Tort Claims Act.

Having reviewed the parties’ pleadings and the applicable law, the Court finds that

Defendant’s motion is well-taken, and accordingly, GRANTS Defendant Mull’s Motion for

Summary Judgment.

FACTUAL BACKGROUND

On August 29, 2027, the date of the disputed events, Plaintiffs “were in a dating

relationship” and lived together in Chouteau, Oklahoma, along with Plaintiff Nichols’ minor son,

J.W.S. Pet’n, Doc. 6-2, ¶¶ 3-4. At approximately 7:00 a.m., Defendant Mull and Deputy Oberg,

employees of the Mayes County Sherriff’s Department, arrived at Plaintiffs’ residence pursuant to

a lawful search warrant obtained by Deputy Oberg. Defs. St. of Undisputed Mat. Facts (“Def.’s

SOF”) ¶¶ 14, 15; Pls.’ Resp. Br., Doc. 95, at 1.1 The warrant authorized the search of Plaintiffs’

residence and any vehicles on the premises and its curtilage for methamphetamine,

instrumentalities and paraphernalia associated with the sale and exchange of illegal narcotics,

money associated with drug sale proceeds, telephone numbers, records indicating the sale of illegal

narcotics, and letters and mail proving residency, and the seizure of such items. Doc. 91-6.

Defendant Mull reviewed and was briefed on the warrant prior to the search. Def.’s SOF ¶¶ 10-

11.

The parties dispute what happened during the search.2 Plaintiffs allege that Defendant Mull

1 Plaintiffs do not contest the validity of the warrant. See, e.g., Pls.’ Resp. to Def.’s SOF, Doc. 95 at 4, ¶ 2. The

Court “take[s] this omission as a concession that the officers, including [Defendant Mull], entered the premises in

reliance on a valid warrant.” Jenkins v. Wood, 81 F.3d 988, 995 (10th Cir. 1996)

2 As is apparent from the parties’ differing versions of events, much of the parties’ disagreement turns on whose version

is credited. Because creditability determinations are the province of the factfinder, not the Court on summary

judgment, the Court accepts Plaintiffs’ version of disputed facts to the extent supported by record evidence. See Est.

of Bleck v. City of Alamosa, 540 F. App’x 866, 869 (10th Cir. 2013).

threatened Plaintiff Moreland, “Tell me where the drugs are or we will tear the place up.” Pet’n

¶ 16. Plaintiffs allege further that, in the course of the search, Defendants “removed virtually

every item from plaintiffs’ residence and buildings on the property[,] destroying all property.” Id.

¶ 12. They also submit evidence that sounds of property being thrown could be heard from outside

the house, and Plaintiffs contend that Defendant Mull and Deputy Oberg “bust[ed]” surveillance

cameras to obscure what they were doing. Pet’n ¶ 12; Pls.’ Ex. 9, Doc. 95-9, Pls.’ Ex. 10, Doc.

95-10. Plaintiff Nichols’ affidavit indicates that she observed Defendant Mull smashing and

breaking the cameras with a rake. Nichols’ Aff., Pls.’ Ex. 9, Doc. 95-9.

Defendant Mull maintains that his “assignment was to secure the outer perimeter of the

residence and monitor it.” Mull Decl., Def.’s Ex. 7, Doc. 91-7, ¶ 10. At the outset of the search,

Defendant Mull was stationed behind Plaintiffs’ residence. Id. From his location at the back of

the house, he claims “he did not see the entry team enter the residence or how many occupants

were inside the home.” Def.’s SOF ¶ 19; Mull Decl. ¶ 11. Shortly after their arrival, he “heard

the entry team announce that the interior of the residence was secured.” Mull Decl. ¶ 11. At that

point, he “made [his] way to the front of the residence.” Id. From there, he reports observing an

“adult male subject (later identified as Scott Moreland) and a female subject (later identified as

Rebecca Nichols) being detained.” Id. He further maintains that he “was not involved in detaining

either subject” and “did not see any other non-law enforcement individuals” while stationed at the

perimeter of the house. Id.

Plaintiff Moreland represents that he was handcuffed outside and that Defendant Mull came

outside and asked if he remembered him. Doc. 95-4 at 4. Moreland responded that he did not.

Id. Plaintiffs allege that J.W.S., who has medical issues, including a heart condition, was made to

wait in the police car during the search and suffered trauma as a result. Id. ¶ 15. Defendant Mull

recalls being “advised that the entry team had removed a juvenile male and relocated him to a safer

place while the entry team finished clearing the residence.” Doc. 91-7 ¶ 11. He alleges that he

does not remember interacting “with any juvenile” during the search. Id.

While talking with officers outside, Defendant Mull states that he observed several video

cameras attached to the exterior of the residence. He later observed that these cameras were

“connected to a central screen inside on[e] of the bedrooms in the house.” Id. ¶ 13. To his

recollection, Defendant Mull did not speak to either Plaintiff outside. Id. ¶ 12. He then conducted

a walkthrough of the residence. Id. ¶ 13. He saw officers searching the residence “in a manner

consistent with methods that were required to identify the sorts of contraband and drug

paraphernalia reflected in the scope of the search warrant.” Id. ¶ 14.

The search resulted in the seizure of a Chevy Blazer that was confirmed stolen, a large zip-

lock bag full of small pristine baggies, and a “fully operative surveillance system,” including a

monitor in the main bedroom and cameras “mounted on the outsides of the residence.” Doc. 91-

23.

RULE 56 STANDARD

Summary judgment is warranted “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.” Fed. R. Civ. P.

56(a); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670–71 (10th Cir. 1998). In so

showing, the movant need not “negate the nonmovant’s claim” but may instead “simply . . . point[]

out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant’s

claim.” Adler, 144 F.3d at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986)).

“A party asserting that a fact cannot be or is genuinely disputed must support the assertion” with

record evidence, including “depositions, documents, electronically stored information, affidavits

or declarations, stipulations . . . . admissions, interrogatory answers, or other materials” or by

“showing that the materials cited do not establish the absence or presence of a genuine dispute, or

that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1). To that end, “[i]f a party fails to properly support an assertion of fact or fails to properly

address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the

fact undisputed for purposes of the motion” or “grant summary judgment if the motion and

supporting materials—including the facts considered undisputed—show that the movant is entitled

to it.” Fed. R. Civ. P. 56(e). Ultimately, the inquiry is whether the competent evidence “presents

a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).

42 U.S.C. § 1983

“To prevail on a claim for damages for a constitutional violation pursuant to 42 U.S.C.

§ 1983, a plaintiff must establish the defendant acted under color of state law and caused or

contributed to the alleged violation.” Jenkins, 81 F.3d at 994. Mere presence during the relevant

events is insufficient; rather, “the plaintiff must show the defendant personally participated in the

alleged violation.” Id. (citing Bennett v. Passic, 545 F.2d 1260, 1262–63 (10th Cir. 1976)).

QUALIFIED IMMUNITY

“Qualified immunity changes the nature of summary judgment — requiring a ‘different

kind of review.’” Burke v. City of Bartlesville, No. 20-cv-244-WPJ-SH, 2024 WL 4508959, at *2

(N.D. Okla. Oct. 16, 2024) (quoting Shepherd v. Robbins, 55 F.4th 810, 815 (10th Cir. 2022)), aff’d

sub nom. Burke v. Pitts, 157 F.4th 1326 (10th Cir. 2025), pet’n for cert. filed, No. 25-1062 (U.S.

Mar. 2, 2026). “When a defendant asserts qualified immunity at the summary judgment stage, it

is the plaintiff’s burden to prove (1) the defendant violated his constitutional rights; and (2) the

law was clearly established at the time of the alleged violation.” Soza v. Demsich, 13 F.4th 1093,

1099 (10th Cir. 2021).

“Ultimately, Defendants do not bear the ‘traditional burden of the movant for summary

judgment’ unless the Plaintiff is able to satisfy this two-part test.” Burke v. City of Bartlesville,

2024 WL 4508959 at *2 (quoting Gutteridge v. Okla., 878 F.3d 1233, 1239 (10th Cir. 2018)). That

is because once asserted, the affirmative defense of qualified immunity “creates a presumption that

the defendant is immune from suit.” Jarvis v. Liggett, ---F.4th----, 2026 WL 1674796, at *5 (10th

Cir. June 10, 2026) (citing Crowson v. Wash. Cnty. Utah, 983 F.3d 1166, 1178 (10th Cir. 2020)).

Therefore, although the Court views disputed facts in the light most favorable to Plaintiffs,

Plaintiffs must identify evidence in the record from which a reasonable jury could find both a

constitutional violation and clearly established law. Burke v. Regalado, 935 F.3d 960, 1002 (10th

Cir. 2019). Failure to establish either prong entitles the Defendant to qualified immunity. Heard

v. Dulayev, 29 F.4th 1195, 1203 (10th Cir. 2022). The Court “has discretion to decide the order in

which these two prongs should be addressed, and, when appropriate, does not need to address

both.” Soza, 13 F.4th at 1099.

“For purposes of qualified immunity, law is clearly established if Supreme Court or Tenth

Circuit or the weight of authority from other circuits, would put reasonable officers in the

defendants’ position on notice they were violating the Fourth Amendment.” Id. (citing Carabajal

v. City of Cheyenne, 847 F.3d 1203, 1210 (10th Cir. 2017)). “Precedent need not be ‘directly on

point’ so long as it places the ‘statutory or constitutional question beyond debate.’” Crane v. Utah

Dep’t of Corrs., 15 F.4th 1296, 1303 (10th Cir. 2021) (quoting Mullenix v. Luna, 577 U.S. 7, 11

(2015)). “Still, clearly established law must remain moored in a specific set of facts.” Id. “The

dispositive question is whether the violative nature of particular conduct is established, which

means courts may not define clearly established law at a high level of generality.” Id. (quoting

Mullenix, 577 U.S. at 12) (quotations omitted).

Here, Plaintiffs assert that while assisting in the execution of the search warrant, Defendant

Mull removed and destroyed the property in their residence, including busting security cameras,

and made J.S.W. wait in the police car while the search was underway. They assert that these acts

exceeded the authority and scope of the search warrant, constituting an unlawful seizure in

violation of the Fourth Amendment.

ANALYSIS

I. Summary Judgment Evidence

The parties raise various evidentiary objections, some of which require resolution in order

to clarify the universe of facts before the Court. “At the summary judgment stage, evidence need

not be submitted ‘in a form that would be admissible at trial.’” Argo v. Blue Cross & Blue Shield

of Kan., Inc., 452 F.3d 1193 (10th Cir. 2006). But the “content or substance of the evidence must

be admissible.” Id. (quoting Thomas v. Int’l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995)). The

Court is not precluded from considering, for example, affidavits or declarations, discovery

responses or “other materials” often excluded at trial due to the prohibition on hearsay where the

evidence may ultimately be invoked at trial in an admissible form. Fed. R. Civ. P. 56; Argo, 452

F.3d at 1199; Johnson v. Weld Cnty., 594 F.3d 1202, 1210 (10th Cir. 2010). The Court may not

accept hearsay statements solely on the basis that they are contained within the summary judgment

record. Instead, the Court must put aside hearsay when the opponent properly objects to its use

and the proponent points to no applicable exception to the hearsay rule. Montes v. Vail Clinic, Inc.,

497 F.3d 1160, 1176 (10th Cir. 2007).

Defendant Mull objects to Plaintiffs’ evidence of his prior conviction, Pls.’ Ex. 1, Doc. 95-

1, and a petition and affidavit from another case involving Deputy Oberg, Pls.’ Ex. 2, Doc. 95-2,

on the ground that they are being offered solely to attack the witnesses’ credibility. Doc. 97 at 1–

2. The Court agrees. Plaintiffs appear to offer this evidence for no purpose other than creating a

credibility question — an issue that becomes relevant only if the case proceeds to trial. See

Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir. 2000). Because the evidence does not bear on

any factual inquiry at hand, Plaintiffs cannot rely on Exhibits 1 and 2 to satisfy their summary

judgment burden.

Defendant Mull also objects to Plaintiffs’ exhibits 5, Pls.’ Ex. 5, Doc. 95-5, and 7,3 Pls.’

Ex. 7, Doc. 95-7, on the grounds that they are unsworn, unsigned and undated. Doc. 97 at 3.

These exhibits appear to be informal statements purportedly authored by Plaintiffs. Plaintiff

Moreland’s statement is dated simply “January 2018” and Plaintiff Nichols’ statement is dated

January 12, 2018. Neither statement is sworn or contains a statement pursuant to 28 U.S.C. § 1746.

It is well-established that “unsworn statements do not qualify as affidavits and are not to be

considered by the Court when ruling on a motion for summary judgment.” In re Hobbs, No. 22-

103330-JDL, 2023 WL 3689632, at *4 (Bankr. W.D. Okla. May 26, 2023) (citing Adickes v. S.H.

Kress & Co., 398 U.S. 144, 158 n. 17 (1970)). Plaintiffs make no attempt to otherwise demonstrate

their reliability. Therefore, the Court disregards Plaintiffs’ Exhibits 5 and 7.

Plaintiffs object to Defendant Mull’s reliance on law enforcement reports as inadmissible

hearsay. Doc. 95 at 2–4. Without articulating which excerpts, or, at minimum, exhibits, Plaintiffs

seek to exclude, the objection is overbroad. Police reports are often admissible as falling within

the public records exception to the hearsay rule. Fed. R. Evid. 803(8); see, e.g., United States ex

rel. Barrick v. Parker-Migliorini Int’l, LLC, 79 F.4th 1262, 1273–74 (10th Cir. 2023). Accordingly,

the mere fact that a statement appears in a police report does not render it inadmissible. Whether

3 Defendant’s Reply Brief refers to “Exhibits 5 and 8.” Based on the context, however, the Court understands the

reference to Exhibit 8 to be a typographical error. Exhibit 8 consists of excerpts from Plaintiff Moreland’s deposition,

whereas Exhibits 5 and 7 appear to be the statements challenged in the reply. See Doc. 97 at 3.

a particular statement within an otherwise admissible police report constitutes hearsay depends on

the purpose for which it is offered, and such reports may contain information that is not hearsay,

falls within an exception, or could be presented in admissible form at trial. Plaintiff does not

identify any specific statement on which reliance would be improper. The Court therefore

overrules the objection to the extent it seeks exclusion of the reports in their entirety.

A. Plaintiffs’ Affidavits

Defendant Mull objects to Plaintiffs’ self-authored affidavits created after Plaintiffs were

deposed on the theory that they are presented solely for the purpose of creating a sham factual

issue. Nichols Decl., Pls.’ Ex. 9, Doc. 95-9; Moreland Decl., Pls.’ Ex. 10, Doc. 95-10.4

Defendant points to inconsistencies between statements Plaintiffs made during their depositions in

January 2025 and their affidavits in April 2025.

Although it is the general rule that credibility assessments must be withheld at summary

judgment, the court may disregard a “contrary affidavit” if it is apparent that it “constitutes an

attempt to create a sham fact issue.” Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). This

is sometimes referred to as the “sham affidavit doctrine.” Whyte Monkee Production, LLC v.

Netflix, Inc., 601 F.Supp.3d 1117, 1130 (W.D. Okla. 2022). An affidavit rarely falls within this

exception and “may not be disregarded [simply] because it conflicts with the affiant’s prior sworn

statements.” Burns v. Bd. of Cnty. Com’rs of Jackson Cnty., 330 F.3d 1275, 1281 (quoting Franks,

796 F.2d at 1237); see Franks, 796 F.2d at 1237 (concluding that it was “one of those unusual cases

in which the conflict between the testimony and the affidavit raises only a sham issue”). The Tenth

4 Plaintiff Moreland’s affidavit appears to be verified and signed on April 24, 2025. Doc. 95-10. The date of Plaintiff

Nichols’ affidavit, if it is dated, is obscured due to poor image quality but the verification and signature appears to

have been completed sometime in April 2025. In any event, it is immaterial on what date in April the statements were

made because they were undisputedly created several months after Plaintiffs were deposed. See Doc. 95-8 (Moreland

Dep. Tr. dated Jan. 21, 2025); Doc. 91-2 (Nichols Dep. Tr. dated Jan. 8, 2025). Although the cover page of Plaintiff

Nichols’ deposition transcript refers to a Rebecca Jane Moreland, there appears no question that the deposition

testimony belongs to Plaintiff Nichols.

Circuit has established certain “[f]actors relevant to the existence of a sham fact issue,” including

“whether the affiant was cross-examined during his earlier testimony, whether the affiant had

access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was

based on newly discovered evidence, and whether the earlier testimony reflects confusion which

the affidavit attempts to explain.” Franks, 796 F.3d at 1986.

Defendant points to excerpts from Plaintiff Nichols’ deposition at which she testified about

her knowledge and recognition of Defendant Mull. Plaintiff Nichols testified that she met Mr.

Mull only once — during the search, was uncertain if she would be able to identify him if

presented with a photo, and the reason she knew it was him going in and out of the house and

yelling at Plaintiff Moreland was Moreland’s telling her so after the fact. Nichols Dep. Excerpts,

Doc. 97-1 at 55:3-7. Nichols also testified regarding her knowledge of Defendant Mull, “I could

probably pick him out” and “I know what he looks like, but that morning, he wasn’t in uniform.”

Id. at 55:13-16. When asked what Mull was wearing, Nichols testified “[h]e had on pants and a

shirt” and when asked what color his pants were, Nichols said, “I couldn’t tell you. I think he had

on jeans.” Id. at 55:18-20. When asked about his appearance, Nichols testified “Thin hair on top.

He was taller than me. That’s about the best I can give you.” Id. at 55:23–56:1.

Defendant Mull asserts that that testimony conflicts with Plaintiff Nichols’ later assertions

in her affidavit that she saw him go in and out of the house, and when he was in the house, she

“could hear loud noises that sounded like property being thrown.” Doc. 97-1 at 1; Nichols’ Aff.,

Pls.’ Ex. 9, Doc. 95-9 ¶ 1. Mull also points to Nichols’ affidavit testimony that when Mull came

back outside, “the noise would stop” and that Nichols “saw through the window property being

thrown.” Doc. 95-9 ¶ 1. But the Court does not read the cited testimony as contradictory. An

inability to name the officer at the time of the search and a foggy recollection of what he was

wearing in a deposition eight years after the relevant events does not conflict with a recollection

that the officer Nichols later identified as Mull walked in and out of the residence and that she

heard loud noises at points during the search. The cited testimony does not foreclose the possibility

that Plaintiff Nichols subsequently learned Defendant Mull’s identity and later identified him as

one of the officers she observed. The sham affidavit doctrine does not call for exclusion of the

cited portions of Plaintiff Nichols’ testimony.

Defendant also points to Plaintiff Nichols’ testimony that her knowledge about Defendant

Mull’s involvement was limited to her awareness that “he was present at the scene” and that she

“just saw him going in and out of the house” to undermine her later declaration that she “saw Mull

break the cameras outside by smashing them with a rake.” Doc. 97-1 at 3; Nichols Dep. Excerpts

Doc. 97-1 at 104:8-10; cf. Nichols Aff., Doc. 95-9 ¶ 2. At her deposition, Plaintiff Nichols

testified, regarding “the damage to the security cameras and set up”: “They weren’t there. I don’t

know.” Doc. 97-1 at 3; Nichols Dep. Excerpts, Doc. 97-1 at 114:12-17.

To be sure, a comparison of Plaintiff Nichols’ deposition testimony to her later affidavit

reveals inconsistencies. If Nichols did observe Defendant Mull smash the cameras, that begs the

question why she did not mention that at the deposition. At the same time, the Court cannot

conclude that the statements are so directly contradictory as to support an inference the later

affidavits are a sham. The answer to the question about her observations concerning Defendant

Mull’s conduct could be read as, “I didn’t see what he was doing inside the house; I only saw him

going in and out.” Her response to the question about the damage to the security cameras could

be read as stating, “I don’t know the extent of the damage to the camera system” or “ I don’t know

what happened to the cameras after the search.” When interpreted in these ways (and it is not the

Court’s role to credit one plausible reading over another at this stage), neither statement directly

contradicts Nichols’ affidavit testimony. Defendant Mull has not established that the sham

affidavit doctrine warrants exclusion of Plaintiff Nichols’ affidavit, Nichols Aff., Pls.’ Ex. 9, Doc.

95-9, from the summary judgment record.

Defendant Mull also asserts the sham affidavit doctrine precludes consideration of Plaintiff

Moreland’s declaration that he looked at a photograph of Defendant Mull after his deposition and

learned that Defendant Mull was the person who took his lighter and that during the search he saw

Defendant Mull walk in and out of the house and heard loud noises that sounded like property

being thrown when Mull was inside the house. Moreland Aff., Pls.’ Ex. 10, Doc. 95-10.

Defendant Mull cites to portions of Plaintiff Moreland’s testimony indicating that Moreland met

Mull for the first time during the execution of the search warrant and that he did not know it was

Mull who took his lighter or kicked in the door at the time of the search. Reply Ex. 1, Doc. 97-1

at 3–7; Moreland Dep. Excerpts, Doc. 97-1 at 93:16-94:9; 104:18-105:20. But the Court does

not read Plaintiff Moreland’s statements as contradictory. That Moreland was unable to identify

Mull contemporaneously does not foreclose the possibility that he was later able to do so after

having been shown a photograph. Therefore, the sham affidavit doctrine does not clearly warrant

striking Plaintiff Moreland’s statements.

In sum, the summary judgment record includes Plaintiffs’ affidavits. Pls.’ Ex. 9, Doc. 95-

9; Pls.’ Ex. 10, Doc. 95-10. To the extent any specific objections are not addressed herein, the

Court has considered only evidence that would be admissible at trial or could be presented in

admissible form.

II. Fourth Amendment Claims

The Fourth Amendment protects one’s right “to be secure in their persons, houses, papers

and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A Fourth

Amendment seizure includes the detention of a residence’s occupants during a search of the

residence. See United States v. Ritchie, 35 F.3d 1477, 1482 (10th Cir. 1994).

A search conducted pursuant to a warrant is presumptively reasonable. See United States

v. McKneely, 6 F.3d 1447, 1454–55 (10th Cir. 1993). Officers are granted discretion in determining

how to execute the search, though their actions must remain within the bounds of reasonableness.

See Dalia v. United States, 441 U.S. 238, 257 (1979); Lawmaster v. Ward, 125 F.3d 1341, 1349

(10th Cir. 1997); Soza, 13 F.4th at 1099 (“The ‘touchstone’ of any Fourth Amendment analysis is

the reasonableness of the police conduct.”). A search conducted pursuant to a lawful warrant may

violate the Fourth Amendment where property is excessively or unnecessarily destroyed. United

States v. Ramirez, 523 U.S. 65, 71 (1988). Officers are not required, however, to conduct the search

in a manner that avoids all property damage, and some damage may be incident to a lawful search.

See Ramirez 523 U.S. at 71; Caviness v. Johnson, 614 F. Supp. 2d 1246, 1250–51 (E.D. Okla.

2008) (citing Liston v. Cnty. of Riverside, 120 F.3d 965 (9th Cir. 1997)). “Whether an officer’s

conduct is reasonable is a highly fact-dependent inquiry that can only be determined on a case-by-

case basis.” Lawmaster, 125 F.3d at 1349. The court reviews the “totality of the circumstances to

determine whether the officer’s conduct was reasonably necessary to effectuate the warrant’s

purposes.” Id. (citing United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993)).

When executing a search warrant, law enforcement officers “may take reasonable action

to secure the premises and to ensure their own safety and the efficacy of the search.” Los Angeles

Cnty., Cal. v. Rettele, 550 U.S. 609, 614 (2007). And “[a] warrant to search for contraband founded

on probable cause implicitly carries with it the limited authority to detain the occupants of the

premises” while the search is carried out. Mich. v. Summers, 452 U.S. 692, 705 (1981). Such

authority is “categorical” and is not dependent on the “quantum of proof justifying detention or

the extent of the intrusion to be imposed by the seizure.” Muehler v. Mena, 544 U.S. 93, 98 (2005)

(citing Summers, 452 U.S. at 705 n.19). The personal intrusion caused by detention for the

duration of a lawful search is generally outweighed by “three legitimate law enforcement

interests”: 1) “preventing flight in the event that incriminating evidence is found”; 2) “minimizing

the risk of harm to the officers”; and 3) “facilitating ‘the orderly completion of the search.’”

Muehler, 544 U.S. at 98 (quoting Summers, 452 U.S. at 702–03). The detention of minors may

involve unique concerns, however, is ultimately examined under the same reasonableness

standards governing the detention of adults. See Gordon v. Louisville/Jefferson Cnty. Metro Gov’t,

486 F. App’x 534, 542 (6th Cir. 2012) (citing Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.

1994)).

A. Detention of J.W.S.

Plaintiffs assert that J.W.S.’s detention in the police car during the search constituted an

unreasonable seizure. Pet’n ¶¶ 15; 17; Doc. 95 at 1–2. The record indicates that J.W.S. was in

his bedroom when the officers arrived, Plaintiff Nichols picked him up, and officers placed him in

the back of the police car, where he remained for about an hour until his grandmother came and

picked him up. Doc. 104 (Supp. Pls.’ Ex. 12) at 6, Moreland Depo at 102:11-21; J.W.S. Dep.,

Doc. 91-12 at 10:21-11:4. J.W.S. testified that the officers gave him an iPad, on which he watched

Netflix while he waited in the car. J.W.S. Dep., Doc. 91-12 at 11:10-18. Although Plaintiff

Nichols testified that Defendant Mull was not the officer who put J.W.S. in the car, Plaintiff

Moreland describes that he told Defendant Mull not to keep J.W.S. in the back of the police car

because of his medical condition but was ignored. Nichols Dep. at 114:20-22; Pls.’ Ex. 4, Doc.

95-4, at 5. Plaintiffs allege that as a result of this event, J.W.S. suffered anxiety, worsened by

preexisting medical conditions and manifesting as heart and chest pains. Ex. 12 at 4.

Plaintiffs have failed to put forth evidence suggesting that Defendant Mull participated in an

unlawful detention of J.W.S. Even assuming that requiring J.W.S. to remain in the vehicle during

execution of the search constituted a seizure, Plaintiffs have not identified authority clearly

establishing that such conduct was unreasonable under the circumstances. In addition, the record

presents no evidence that Defendant Mull was personally responsible for the decision to keep

J.W.S. in the vehicle. See Doc. J.W.S. Dep., Doc. 95-12 at 10:2-20; Mull Decl. ¶ 11; see Jenkins,

81 F.3d at 994 (a § 1983 violation requires personal participation); Gordon, 486 F. App’x at 54

(affirming summary judgment of qualified immunity in part because the officer responsible for the

children’s detention was not identified).

The most concerning evidence regarding Defendant Mull’s conduct in relation to J.W.S. is his

alleged failure to act on Plaintiff Moreland’s request that J.W.S. not be kept in the car due to his

medical condition. See Doc. 95-4 at 6. But the record does not indicate at what point in the search

that request was made nor does it suggest that the conditions within the vehicle made it perceptibly

unsafe for a minor to remain in the backseat. Moreover, while it may not have been necessary to

place J.W.S. in the police car, as opposed to another location outside the house, Plaintiffs do not

offer any authority establishing that doing so is unreasonable. Further, there is no evidence that

the officers unreasonably prolonged the search or kept J.W.S. in the car after the search was

completed. To the contrary, J.W.S.’s grandmother picked him up after approximately one hour,

during which he entertained himself by viewing Netflix on an iPad. Although J.W.S.’s alleged

diagnosis with PTSD certainly is serious, the record does not indicate that J.W.S. showed signs of

distress at the time of the incident such as would have alerted the officers that the purposes fulfilled

by having him wait in the car — such as protecting his safety and facilitating an efficient and

thorough search — were outweighed by potential harm.

For these reasons, Plaintiffs’ claim concerning the detention of J.W.S. fails to withstand

summary judgment. Defendant Mull is entitled to qualified immunity on this claim.

B. Seizure of Plaintiffs’ Property

Plaintiffs allege that Defendant Mull contributed to an unreasonable seizure of Plaintiffs’

property when, exceeding the scope of the search warrant, Defendants “removed every item from

plaintiffs’ residence and buildings on the property[,] destroying all property.” Pet’n ¶ 12.5

Plaintiffs’ affidavits describe hearing sounds of property being “thrown” when Mull was in the

house and relative quiet when Mull was outside the house. Docs. 95-9; 95-10. Plaintiff Nichols

states that she “saw through the window property being thrown” and “saw Mull break the cameras

outside by smashing them with a rake.” Doc. 95-9. Plaintiff Moreland also contends that

Defendant Mull took a lighter from Plaintiff Moreland’s pocket and lit Mull’s cigarette. Pl.’s Ex.

9, Doc. 95-9 ¶ 3; Moreland Dep., Doc. 95-8 at 104:18–22.

Plaintiffs allege that the events resulted in actual damages to personal property of more than

$10,000. Pet’n, Doc. 6-2 at ¶ 23. Plaintiffs also seek $10,000 in punitive damages against

Defendant Mull and Deputy Oberg on the theory that they consciously disregarded Plaintiffs’

federally protected rights. Id. ¶ 24.

Plaintiffs put forth photographs allegedly depicting the “property destroyed” and allege that

Plaintiffs can testify as to the damage to their property. See Doc. 95-9 at 9 ¶ 41; 95-11. They also

submit a list of “[i]tems,” alleging certain monetary amounts represent the “cost to replace” various

5 The Complaint also appears to allege that the detention of Plaintiff Moreland and Plaintiff Nichols was unlawful in

its duration and as a result of the “threatening and intimidation tactics” employed by Defendant Mull and Deputy

Oberg. Pet’n ¶ 20. But Plaintiffs do not put forth evidence that Defendant Mull was responsible for their detention,

or that their detention exceeded the scope of reasonableness in view of the execution of the lawful search warrant.

See Doc. 95-4 at 6 (indicating that Moreland was already handcuffed before Mull came outside); see Jenkins, 81 F.3d

at 996 (summary judgment in favor of officer was warranted on excessive search claim where the plaintiffs admitted

the officer “did not physically participate in any of the search of the residence”); Summers, 452 U.S. at 705 (“[A]

warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain

the occupants of the premises while a proper search is conducted.”). This claim fails to withstand summary judgment.

furniture, the “front door,” the “storage container damage to contents,” a “shed,” a “travel trailer

(pop up),” and “damage to house and paint.” Doc. 95-5. Plaintiff Moreland’s testimony suggests

that the monetary amounts assigned to the items were his own estimate of the value of such

items — rather than the cost to repair damage, let alone damage resulting from the instant events.

Doc. 95-8 at 109:3–112:9. In any event, even assuming the evidence has some probative value, it

concerns the state that property was allegedly left in, not actions taken by any particular officer

during the course of the search. Generalized assertions regarding the condition of the property

after the search do not permit a finding that Defendant Mull committed a constitutional violation.

The most troubling piece of evidence supporting this claim is Plaintiff Nichols’ sworn

statement that she saw Mull smashing and breaking the outside cameras with a rake. Nichols.’

Aff., Pls.’ Ex. 9, Doc. 95-9 at 2. If the cameras posed no obstacle to the search, a reasonable jury

could view smashing them with a rake as gratuitous and therefore outside the purpose of the

warrant. When compared with Plaintiff Nichols’ earlier deposition statement that she “just saw

[Mull] going in and out of [the] house,” Doc. 91-2 at 114:17–18, this statement raises potential

credibility issues. However, even assuming that this testimony creates a disputed factual issue

with respect to the cameras, Plaintiffs have not shown that clearly established law placed the

constitutional question beyond debate. In other words, Plaintiffs do not provide authority

establishing that an officer violates the Fourth Amendment by damaging or disabling exterior

security cameras during the execution of a search warrant — particularly where surveillance

equipment was among the items seized. See Doc. 95 at 12–14; Doc. 91-23 (Search Warrant Return

Inventory, including “Fully Operative Surveillance System”). Therefore, Plaintiffs’ showing is

insufficient to defeat qualified immunity.

Plaintiffs’ observation that sounds emanating from the house suggested property was being

“thrown,” is likewise insufficient to establish a Fourth Amendment violation on the part of

Defendant Mull. The warrant authorized the search and seizure of drugs, drug instrumentalities

and paraphernalia, and money, among other contraband incidental to the sale or trafficking of

drugs. A search for such items may reasonably involve a thorough examination of cabinets,

drawers, containers or other household objects that could be used to store or conceal them,

especially where, as here, officers have information that drugs are hidden in “hidey holes” and

buried in the yard. Doc. 91-4 at 2; Doc. 91-7, ¶ 16; United States v. Ross, 456 U.S. 798, 820–21

(1982) (“A lawful search of fixed premises generally extends to the entire area in which the object

of the search may be found and is not limited by the possibility that separate acts of entry or

opening may be required to complete the search.”); see, e.g., United States v. Mendoza, 817 F.3d

695, 703 (10th Cir. 2016) (search for drugs within the lining of an ice chest was reasonable). Apart

from conclusory assertions regarding the cost of repair, the record does not clarify the form or

extent of the damage to the items Plaintiffs list, let alone detail how such damage is attributable to

the search. See Moreland Dep., Doc. 91-1, at 45:2–50:1. The record and reasonable inferences

therefrom do not give rise to a plausible inference that the officers’ conduct was excessive, rather

than incidental to a thorough yet lawful search.

This Court’s conclusion aligns with the conclusions of other district courts within this Circuit

presented with similar summary judgment records. Addressing a warrant-authorized search for

“drugs, drug paraphernalia, currency, weapons, and any records containing evidence

of . . . narcotics trafficking,” the court in Gonzales v. Bernalillo Cnty. Sheriff’s Dep’t, found that

despite allegations of broken televisions and the removal of security cameras, plaintiff had not

demonstrated that “the officers caused anything other than property damage that was merely

incidental to a reasonable and lawful search.” No. 16-1045-MCA-GBW, 2017 WL 3208529

(D.N.M. Apr. 4, 2017), report and recommendation adopted, 2017 WL 3207798 (D.N.M. May 31,

2017). (“It is possible that the televisions were broken as a result of forced entry into Plaintiff’s

bedroom, or otherwise removed from the walls to search for compartments or safes where the

items listen in the warrant could be hidden.”). Another court within this district, addressing a

search the plaintiff characterized as a “rampage” and involving officers “stomp[ing] and

destroy[ing]” a home security system, cameras, monitor, and recording equipment, concluded that

the record did not demonstrate that the search was “unnecessarily thorough to fulfill its purpose”

where the search warrant concerned methamphetamine, drug paraphernalia and related items in

the plaintiff’s house and vehicles. Lemmons v. Waters, No. 11-CV-500-JED-PJC, 2014 WL

5419237, at *5–6 (N.D. Okla. Oct. 23, 2014). Plaintiffs face a similar evidentiary deficiency here:

assuming Plaintiffs’ allegations are true, the record does not permit an inference that the purported

damage and sounds from inside the home resulted from excessive or unnecessary acts by the

officers.

Plaintiffs’ evidence also fails to plausibly tie any conduct of Defendant Mull to destruction that

occurred within or outside the home, save for Plaintiff Nichols’ observation with respect to the

surveillance cameras, which, as discussed above, does not overcome qualified immunity.

Although Plaintiffs’ observations suggest that officers were moving or disturbing property during

the search, Plaintiffs did not observe the activity inside the residence and therefore cannot testify

from personal knowledge as to what specifically occurred. See Jenkins, 81 F.3d at 995 (claim did

not overcome summary judgment where non-movants did not point to “any evidence personally

linking Agent Wood to any of the damage in their home”); Baker v. Smith, 771 F. Supp. 1156, 1158

(D. Kan. 1991) (Bivens claim was subject to dismissal where the complaint did not identify “how

or which defendants were responsible for the alleged destruction of [plaintiff’s] property”).

Although the taking of Plaintiff Moreland’s lighter may have been unnecessary or even unjustified,

the undisputed evidence establishes that the property interest at issue was minimal. Doc. 91-19

(estimating cost to replace lighter is $3.95). Under these circumstances, the alleged deprivation

was de minimis and does not rise to the level of a Fourth Amendment seizure. See United States

v. Jacobsen, 466 U.S. 109, 126 (1984) (a “seizure” of property occurs only “when there is some

meaningful interference with an individual’s possessory interests in the property”).

III. Plaintiffs’ Unpled Claim for Conversion

Plaintiffs seek to assert a claim of conversion based on allegations that their “personal property

perished when it was taken from their home and damaged” and that Defendant Mull “stole Plaintiff

Moreland’s lighter.” Joint Status Report, Doc. 54. Defendant objects to the assertion of this

claim on the ground that it was not pled in the Complaint and appears for the first time in the

summary of Plaintiffs’ claims included in the Joint Status Report. Doc. 91 at 22–23; see Doc. 54

at 1 cf. Pet’n, Doc. 6-2. In the alternative, Mull asserts that liability is precluded by the Oklahoma

Governmental Tort Claims Act’s immunity for the acts of individual officers taken within the scope

of their employment. Doc. 91 at 23–24. Plaintiffs assert Federal Rule of Civil Procedure 1’s

directive that the rules be construed to “secure the just, speedy, and inexpensive determination of

every action” supports consideration of their claim here. Doc. 95 at 15–16. Plaintiffs also point

to Federal Rule of Civil Procedure 16, which concerns pretrial conferences, asserting that the

authority of the Court to consider pleading amendments in that context warrants consideration of

their claim on Defendant’s motion for summary judgment.

Outside the initial pleading period, Federal Rule of Civil Procedure 15 allows a party to amend

its complaint “only with the opposing party’s written consent or the court’s leave,” and instructs

that the Court “should freely give leave when justice so requires.” “At the summary judgment

stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in

accordance with Fed. R. Civ. P. 15(a).” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315

(11th Cir. 2004). Plaintiffs have neither amended nor attempted to amend the Complaint to add a

conversion claim.

As pled, the Complaint does not assert a claim for conversion. Rather, it alleges a § 1983 claim

for unreasonable seizure as to Defendant Mull and Deputy Oberg and a claim of negligence as to

the dismissed municipal defendants. Doc. 6-2.

Plaintiffs’ citation to Fed. R. Civ. P. 16 is misplaced. Rule 16 governs pretrial conferences,

scheduling orders, and case management and therefore has little bearing on this issue. The rule

contemplates pleading amendments, yet Plaintiffs have neither amended nor sought leave to amend

the Complaint. Plaintiffs likewise offer no explanation why consideration of an unpled claim

would “secure the just, speedy, and inexpensive determination” of this action. See Fed. R. Civ. P.

1. Although the Federal Rules permit liberal amendment, they do not authorize parties to raise

new claims for the first time in response to summary judgment. N. States Power Co. v. Fed. Transit

Admin, 358 F.3d 1050, 1057 (8th Cir. 2004). The court declines to consider Plaintiffs’ unpled

claim for conversion.

CONCLUSION

Because Defendant Mull is entitled to qualified immunity on Plaintiffs’ § 1983 claim for

unlawful seizure, Defendant’s Motion for Summary Judgment is granted.

All pending motions [Doc. 92] are denied as moot.

/s/ William P. Johnson_____________

WILLIAM P. JOHNSON

SENIOR UNITED STATES DISTRICT JUDGE