Chimera et al v. Philpot et al

Filing 121

ORDER by Judge Frank H. Seay granting 105 Motion for Summary Judgment. (case terminated) (trl, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DAVID CHIMERA and BRENDA CHIMERA,
Plaintiffs,
vs.
(1) RON LOCKHART, in his official capacity
as Sheriff of Sequoyah County, (2) JOHNNY
PHILPOT, in his individual capacity, (3)
TABBIE SUTTERFIELD, (4) JOEY OLIVER, (5)
MONTY DAVIS, and (6) DENNIS THOMAS,
Defendants.

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ORDER
Before the court for its consideration is the Defendants
Lockhart, Philpot, Oliver, Davis and Thomas’ Motion for Summary
Judgment and Brief in Support (Doc. #105).

The court rules as

follows on the motion.
STANDARD FOR SUMMARY JUDGMENT
Summary Judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(c); See also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The moving party has the burden of demonstrating the absence of a
genuine issue of fact.
(1986).

Celotex v. Catrett, 477 U.S. 317, 325

If this initial burden is satisfied, the nonmoving party

then has the burden of coming forward with specific facts showing
there is a genuine issue for trial as to elements essential to
the nonmoving party’s case.

Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus.,
Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).
The nonmoving party cannot rest on the mere allegations of the
pleadings, but must go beyond the pleadings and “set forth
specific facts showing there was a genuine issue for trial as to
those dispositive matters for which [it] carries the burden of
proof.” Applied Genetics v. First Affiliated Securities, 912 F.2d
1238, 1241 (10th Cir. 1990).
“A fact is ‘material’ only if it ‘might affect the outcome
of the suit under the governing law,’ and a dispute about a
material fact is ‘genuine’ only ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
Thomas v. IBM, 48 F.3d 478, 486 (10th Cir. 1995) (quoting
Anderson, 477 U.S. at 248).

In this regard, the court examines

the factual record and reasonable inferences therefrom in the
light most favorable to the nonmoving party.

Deepwater Invs.

Ltd. v. Jackson Hole Ski Corp, 938 F.2d 1105, 1110 (10th Cir.
1991).

This court’s function is not “to weigh the evidence and

determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

Anderson, 477 U.S. at 249.

With

these standards in mind, the court turns to the merits of the
defendants’ motion.
FINDINGS OF FACT
The court finds the facts as follows.

Tabbie Sutterfield,

a former defendant, owns a home and property in Sequoyah County,
state of Oklahoma.

David and Brenda Chimera (plaintiffs) own

property which is adjacent to the property owned by Sutterfield.
When Sutterfield purchased her property the residence was already
in place.

The sole access road from Sutterfield’s residence

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crosses over plaintiffs’ property.
landlocked by other properties.

Sutterfield’s property is

Due to a mountainous terrain and

a natural creek, Sutterfield has no access to a public road
except for the sole access road that runs across the plaintiffs’
property.
2008.

Plaintiffs purchased the property in question in June

Since that time, there have been problems regarding the

use of the road.

Sutterfield contacted the Sequoyah County

Sheriff’s Department to complain about the plaintiffs’ harassment
and interference with her access to the road.

The Sheriff’s

Department told her that they could not intervene and that it was
a civil matter.
On the evening of December 29, 2008, the Sequoyah County
Sheriff’s Office call sheet indicates Sutterfield called the
Sequoyah County Sheriff’s Department for assistance.

Sutterfield

reported to the dispatcher that her neighbors had nailed her gate
shut and she could not get out. The gate was removed from its
hinges and sustained no damage on December 29, 2008.

Deputy

Thomas arrived at the scene at 18:21 and went back in service at
18:40.

The call sheet indicates the Deputy advised the parties

to contact their attorney because it was a civil matter.
On December 30, 2008, defendant again left her home and was
blocked from using the road in question.
were physically on the road.

This time plaintiffs

According to the Deputy Call Sheet,

Sutterfield called the Sheriff’s Office for assistance on
December 30, 2008, at 11:43.

Sutterfield reported to the

dispatcher that her neighbors were blocking the road and would
not let her by. Brenda Chimera was also holding a rifle on this
occasion.
11:58.

Deputies Oliver and Davis arrived at the scene at

Sutterfield had photographs to document the problems she

was having with the Chimeras.

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Brenda Chimera had a rifle.
plaintiffs and the sheriffs.

A discussion ensued between the

Plaintiffs were handcuffed during

this encounter.
Deputy Oliver told David Chimera he was under arrest for
breach of the peace.

David Chimera put his hands behind his back

and Deputy Oliver handcuffed him. After the handcuffs were placed
on his hands David Chimera complained of them being too tight and
they were loosened.

The only injury David Chimera claims

occurred during his arrest was a “slice in his skin” on his wrist
which did not bleed.

David Chimera sought no medical care for

his wrist and he did not even put a band-aid on the alleged cut.
David Chimera claims he now has a wrist problem, but he does not
remember when his wrist problem began.
Brenda Chimera was told she was under arrest.

At that time,

she pulled her arm away from Deputy Oliver when she was placed
under arrest.

After Brenda Chimera pulled away from Deputy

Oliver she put her hands behind her back and Deputy Oliver placed
the handcuffs on her.

After Oliver placed the handcuffs on

Brenda Chimera she complained they were too tight so one of the
deputies loosened them.

Brenda Chimera did not receive any

lacerations or bruises during her arrest.

She never saw a doctor

regarding any of the physical injuries she alleges in this
matter.

Deputy Davis did not see any action of Deputy Oliver

that was excessive or out of the normal operations when Oliver
placed the handcuffs on the Chimeras.

David Chimera was arrested

for breach of the peace while Brenda Chimera was arrested for
breach of the peace and resisting arrest.
Neither David Chimera nor Brenda Chimera ever spoke with
former Sheriff Johnny Philpot.

Deputy Thomas, Deputy Davis and

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Deputy Oliver never had a conversation with former Sheriff Johnny
Philpot regarding what happened at the Chimeras on the 29th or
the 30th of December, 2008.
the Chimeras were arrested.

Johnny Philpot was not present when
They have sued Defendant Philpot

simply because he was the deputies’ employer.

David Chimera does

not know of any deficiency in Deputy Davis and Oliver’s training.
Brenda Chimera does not know anything about the supervision of
training of the deputies in the Sequoyah County Sheriff’s Office.
The Chimeras know of no policy of the Sequoyah County Sheriff
that violated their civil rights.
I.

Constitutional Rights-Individual Liability

To establish liability under 42 U.S.C. Sec. 1983 against the
Defendants Philpot, Oliver, Davis, and Thomas in their individual
capacities, plaintiff must demonstrate they acted under color of
state law and that they were personally involved in the alleged
constitutional violations.

Personal participation is an

essential element of a 42 U.S.C. Sec. 1983 claim. Mitchell v.
Maynard, 80 F.3d 1433, 1441 (10th Cir. 1991). In order for
liability to arise under 42 U.S.C. Sec. 1983 a defendant’s direct
personal responsibility for the claimed deprivation of a
constitutional right must be established.

Novitsky v. City of

Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007).
Plaintiffs have asserted a 42 U.S.C. Sec. 1983 claim against
defendants Oliver and Davis for false arrest. A warrantless
arrest by police officers without probable cause violates the
Fourth Amendment and gives rise to a cause of action for false
arrest under 42 U.S.C. Sec.
1476 (10th Cir. 1995).

1983.

Romero v. Fay, 45 F.3d 1472,

However, “a police officer may arrest a

person without a warrant if he had probable cause to believe that

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the arrestee has committed or is committing an offense.” A
warrantless arrest is lawful under the Fourth Amendment if there
is probable cause to believe the person committed an offense.
Atwater v. Lago Vista, 532 U.S. 318, 322 (2001) and Tanburg v.
Sholtis, 401 F.3d 1151, 1159 (10th Cir. 2005).

“Probable cause

exists if facts and circumstances within the arresting officer’s
knowledge and of which he or she has reasonably trustworthy
information are sufficient to lead a prudent person to believe
that the arrestee has committed or is committing an offense.”
Romero at 1476.
21 O.S.C.A. Sec. 1362 provides:
If any person shall willfully or maliciously disturb,
either by day or night, the peace and quiet of any city
of the first class, town, village, neighborhood,
family, or person by loud or unusual noise, or by
abusive, violent, obscene or profane language, whether
addressed to the party so disturbed or some other
person, or by threatening to kill, do bodily harm or
injury, destroy property, fight or by quarreling or
challenging to fight, or fighting, or shooting off any
firearms, or brandishing the same, or by running any
horse at unusual speed along any street, alley,
highway, or public road, he shall be deemed guilty of a
misdeameanor....
The court finds the defendants Oliver and Davis had probable
cause to arrest the plaintiffs for breach of the peace on
December 30, 2008.

When the defendants Oliver and Davis arrived

at the scene Sutterfield told the deputies the Chimeras had
blocked the exit from her home and Brenda Chimera was carrying a
rifle. She then showed the deputies pictures she had taken
documenting the same. This court finds there was sufficient
probable cause to arrest the Chimeras for breach of the peace
because of the threatening nature of their behavior by blocking

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the road with their vehicle and by the fact Brenda Chimera was
brandishing a weapon while blocking Sutterfield from the road.
Accordingly, the court grants the defendants’ Motion for Summary
Judgment as to the Plaintiff’s false arrest claim.
Plaintiffs also assert a claim against defendants Oliver and
Davis for excessive force. In their Second Amended Complaint they
allege defendant Oliver used excessive force in effectuating the
arrest of plaintiffs and that defendant Davis failed to intervene
to stop such force from being used.

Excessive force claims are

governed by the Fourth Amendment’s “objective reasonableness”
standard. Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir.
2009).

“Reasonableness is evaluated under a totality of the

circumstances approach which requires that the following factors
be considered: the severity of the crime at issue, whether the
suspect poses an immediate threat of danger to the safety of
others or the officers, and whether he is actively resisting
arrest.” Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir.
2008).

“Whether an individual officer’s actions are objectively

reasonable in light of undisputed facts is a pure question of
law”.

Scott v. Harris, 550 U.S. 372, 381 (2007).

Furthermore,

in order to recover on their claim of excessive force, plaintiffs
“must show both that the force used was more than reasonably
necessary and some actual injury caused by the unreasonable
seizure that is not deminus, but is physical or emotional.“
Fisher v. City of Las Cruces, 584 F.3d 888, 897 (10th Cir. 2009).
First, the facts reveal defendants acted in an objectively
reasonable manner and used only such force as was necessary to
affect the arrest of the plaintiffs.

In fact, defendants even

loosened plaintiffs handcuffs when they complained that they were
too tight.

Furthermore, plaintiffs cannot document injury either

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physical or emotional as a result of the use of force upon them
by defendant Oliver.

Accordingly, Oliver and Davis are entitled

to summary judgment as to plaintiffs claim of excessive force.
Plaintiffs also assert a claim against defendant Thomas for
“illegal entry” presumably in violation of the Fourth Amendment.
This claim is based upon defendant Thomas alleged entry onto
plaintiffs’ property on December 29, 2008, and alleged removal of
plaintiff’s gate from its hinges.

However, plaintiffs’

uncontroverted facts are simply insufficient to support a claim
for illegal entry.

There is no evidence to support the claim

that Defendant Thomas entered onto plaintiff’s property on that
date to conduct any search.

The evidence shows defendant Thomas

was responding to an emergency call for assistance from
Sutterfield.

There is absolutely no evidence to support

plaintiffs claim that Defendant Thomas removed the plaintiffs’
gate from its hinges.

There is simply no evidence that defendant

entered onto the fenced portion of plaintiffs’ property.
Accordingly,

defendant Thomas is entitled to summary judgment

with regard to plaintiff’s civil rights claim for “illegal
entry”.
Plaintiffs also assert all of their civil rights claims
against defendant Philpot.

However, plaintiffs have no evidence

that defendant Philpot was personally involved in any of the
alleged incidents.

Rather, plaintiffs assert their claims

against Defendant Philpot merely because he was the supervisor of
Defendants Oliver, Davis, and Thomas at the time of their alleged
injury.

Supervisory status by itself is insufficient to support

liability. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.
1996).

In order to prevail on such a claim against Defendant

Philpot, plaintiffs must present evidence of an affirmative link

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between the alleged constitutional violations and defendants
Philpot’s failure to supervise. Meade v. Grubbs, 841 F.2d 1512,
1527-28 (10th Cir. 1988).

The court finds the defendant Philpot

is entitled to summary judgment on the plaintiffs civil rights
claim because the record is completely void of any evidence that
defendant Philpot failed to supervise Oliver and Davis.
Finally, plaintiffs assert a claim against all of the
individual defendants for conspiracy.

Allegations of conspiracy

may form the basis of a 42 U.S.C. Sec. 1983 claim.

Tonkovich v.

Kansas Board of Regents, 159 F.3d 504, 533 (10th Cir. 1998).
However, a claim of conspiracy requires more than conclusory
allegations; in order to state a claim for civil conspiracy under
42 U.S.C. Sec. 1983 a plaintiff must allege specific facts
showing an agreement and concerted actions among the defendants.
Id. Here, the court has already ruled in a previous order
granting the defendant Tabbie Sutterfield summary judgment that
plaintiffs have failed to set forth any evidence of any
conspiracy among the named defendants in this suit.
The court finds the plaintiffs have failed to establish a
civil rights cause of action against defendants Oliver, Davis,
Thomas and Philpot. Accordingly, they are granted summary
judgment on plaintiffs’ claims.
II. Municipal Liability
Plaintiff has also assert a 42 U.S.C. Sec. 1983 claim
against the defendant Lockhart in his official capacity as
Sheriff of Sequoyah County.

In this regard, official capacity

suits “generally represent only another was of pleading an action
against an entity of which an officer is an agent.”

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Monell v.

New York City Department of Social Services, 436 U.S. 658, 690
(1978) and Kentucky v. Graham, 436 U.S. 658, 165 (1985).

“A

municipality may not be held liable where there was no underlying
constitutional violation by any of its officers.” City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986); Cordova v. Aragon,
560 F.Supp. 2d 1041, 1064 (D. Colo. 2008); and

Hinton v. City of

Elwood, 997 F.2d 774, 782 (10th Cir. 1993). The court has
previously found no underlying constitutional violations by the
underlying officers. As a result, there can be no municipality
liability.

Thus, the court also grants summary judgment in the

defendant Lockhart’s official capacity.
III. State Law Claims
28 U.S. C. Sec. 1368 © (3) provides “The district courts may
decline to exercise supplemental jurisdiction over a claim under
subsection (a) if-(3) the district court has dismissed all claims
over which it had original jurisdiction,...”

This court is to

exercise pendent jurisdiction over state law claims on a
discretionary basis.
(10

th

Cir.

2010).

Brooks v. Gaenzle, 614 F.3d 1213, 1229
It is a well settled rule in this circuit

that “If all federal claims are dismissed leaving only state law
claims, the federal district court should decline to exercise
supplemental jurisdiction over remaining state law claims.”

Id.

The court declines to exercise supplemental jurisdiction over
plaintiff’s remaining state law claims.
also dismissed without prejudice.

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Accordingly, they are

IT IS SO ORDERED this 28th day of June, 2011.

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