Aldaba v. Marshall County Board of County Commissioners et al
Filing
82
OPINION AND ORDER by Judge Frank H. Seay granting 49 Motion for Summary Judgment; granting in part and denying in part 51 Motion for Summary Judgment and granting in part and denying in part 53 Motion for Summary Judgment (dma, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ERMA ALDABA, Personal Representative
and Next of Kin to JOHNNY MANUEL
LEIJA, Deceased,
Plaintiff,
v.
THE BOARD OF MARSHALL COUNTY
COMMISSIONERS; JAMES ATNIP; STEVE
BEEBE; THE CITY OF MADILL; and BRANDON
PICKENS,
Defendants.
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) No. CIV-12-85-FHS
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OPINION AND ORDER
This is an action brought by Plainitff Erma Aldaba, as the
personal representative and next of kin to Johnny Manuel Leija
(“Leija”), the decedent, pursuant to 42 U.S.C. § 1983 for claimed
violations to Leija’s constitutional rights in connection with an
altercation involving the individual defendants and Leija on March
24, 2011, while Leija was an admitted patient at Integris Marshall
Memorial Hospital (“Integris”) in Madill, Oklahoma.
Plaintiff
alleges that Defendants James Atnip (“Atnip”) and Steve Beebe
(“Beebe”), Marshall County deputy sheriffs, and Brandon Pickens
(“Pickens”), a City of Madill police officer, violated Leija’s
constitutional
rights
by
(1)
executing
a
warrantless
and
unreasonable seizure of Leija, and (2) using excessive force in
connection with their seizure of Leija.
Plaintiff also asserts
pendent state law tort claims against Defendants, the Board of
Marshall County Commissioners (“Marshall County”), and the City of
Madill (“the City”) for the alleged negligent acts of their
1
respective law enforcement officials, Atnip, Beebe, and Pickens.1
Before the Court for its consideration are the following motions:
(1) Marshall County’s Motion For Summary Judgment (Dkt. No. 49),
(2) Atnip’s and Beebe’s Motion For Summary Judgment (Dkt. No. 51),
and (3) the City’s and Brandon Pickens’ Motion For Summary Judgment
(Dkt. No. 53). Having reviewed the parties’ respective submissions
in connection with these motions, the Court finds summary judgment
is appropriate as to Plaintiff’s section 1983 claims for unlawful
seizure and the pendent state tort claims, but that questions of
fact preclude the issuance of summary judgment in favor of Atnip,
Beebe, and Pickens on Plaintiff’s section claims for excessive
force.
Background
The events that transpired on March 24, 2011, are, in large
part, undisputed.2
voluntarily
On the morning of March 24, 2011, Leija
presented
himself
to
the
Integris
emergency
room
accompanied by his girlfriend, Olivia Arellano (“Arellano”). Leija
1
Additional claims and defendants were included in
Plaintiff’s Complaint. On December 21, 2012, the parties filed a
Stipulation of Dismissal With Prejudice (Dkt. No. 56) eliminating
several of those claims and parties. By virtue of this
Stipulation, Plaintiff dismissed all constitutional claims
pursuant to 42 U.S.C. § 1983 against the City, Marshall County,
James Fullingim, and Robert Wilder. As the Stipulation
recognizes, the claims remaining are the section 1983 claims
against Atnip, Beebe, and Pickens for unlawful seizure and
excessive force, and the pendent tort claims against the City and
Marshall County.
2
Plaintiff has admitted most of the facts set forth by the
defendants in their motions. The Court’s recitation of facts is
framed by these admissions, the undisputed facts established by
the record, and the Court’s viewing of the hospital video
recording submitted by the parties.
2
was evaluated and it was determined that he was suffering from
hypoxia (low oxygen level) and he was diagnosed with severe
pneumonia in both lungs and dehydration.
As a result, Leija was
admitted to Integris for further evaluation and treatment.
Upon
admission at 11:00 a.m., Leija was cooperative, responsive, and in
full agreement with the decision to admit him into the hospital for
treatment.
Leija was given breathing treatments, put on oxygen
through his nostrils, and given intravenous antibiotic treatment.
As a result of the breathing treatments and being put on oxygen
Leija’s oxygen saturation level increased form 77% to 88%. When an
individual’s oxygen saturation level is low enough, one’s mental
status can be affected.
By lunchtime on March 24, 2011, Leija was
still receptive to the treatment being provided to him by the
medical staff at Integris and was polite and cooperative in his
interaction with the staff.
Around 5:35 p.m., Leija’s mood and
demeanor began to change when Leija complained of extreme thirst.
Around 6:00 p.m., Nurse Melissa Farmer (“Farmer”) observed that
Leija had disconnected his oxygen and severed his IV tubing.
Farmer also noticed that Leija was bleeding from his arms and that
there was blood on the floor and the toilet.
Farmer reconnected
Leija’s oxygen and IV tubing and Leija’s oxygen saturation level
increased from 84% to 92%.
During this process, Leija appeared
confused and he asked for his girlfriend, Arellano, several times.
Leija became very anxious, but refused to take any medication to
ease his anxiety.
Farmer contacted Dr. John Conley (“Conley”)
about Leija’s condition and Dr. Conley ordered that Leija be
administered 1 mg of Xanax. At 6:20 p.m., Farmer attempted to give
Leija the Xanax tablet but he refused the tablet, took out his
oxygen, and yelled at Farmer that he didn’t need the medicine and
that she was just telling him lies and more secrets.
Leija
continued to be uncooperative and his aggressiveness increased.
Leija continued yelling and told the nursing staff not to approach
3
him.
He claimed the staff was trying to poison him.
Farmer contacted Dr. Conley again for assistance and Nurse
Matt Turvey (“Turvey”) was sent to Leija’s room.
Turvey attempted
to calm Leija, but Leija began yelling “I am Superman.
You are telling me lies and trying to kill me.”
I am God.
Turvey observed
that Leija had once again removed his IV tubing and that there was
blood on the bathroom wall, toilet, and floors.
Turvey and Dr.
Conley were concerned that the low oxygen level was causing
diminished capacity in Leija.
Dr. Conley believed Leija was
harming himself by removing his oxygen and IV and refusing the
medication.
Dr. Conley directed Turvey to administer an injection
of Haldol and Ativan in order to calm Leija so that he could be put
back on oxygen and have his IV hooked up again.
Leija would not
allow Turvey to administer the medication and Turvey did not
believe that he and Dr. Conley could restrain Leija in order to
administer the injection.
With Dr. Conley’s approval, Turvey
called law enforcement for assistance with a disturbed patient at
6:36 p.m.
Atnip and Beebe were eating dinner with Pickens when
Pickens received the call to assist the hospital with a combative
person.
Pickens informed Atnip and Beebe of the call and they
agreed to assist Pickens.3
At 6:40 p.m., Dr. Conley arrived at Leija’s room to assist
Turvey and he observed Leija state that the medical staff was
trying to poison him, that he was God and Superman, and that only
water was pure enough for him.
Dr. Conley observed blood on the
3
Some confusion exists in the record as to who received
the call for assistance. Atnip and Beebe state Pickens received
the call while Turvey states he notified the Marshall County
Sheriff’s Office for assistance with a disturbed patient. In any
event, they were all notified and responded to the call.
4
ground and on the toilet and that Leija’s underwear was pulled
down.
Dr. Conley became increasingly concerned for Leija’s health
given the behavioral and personality changes in Leija from earlier
in the day when he was admitted.
Dr. Conley observed Leija’s
aggressive behavior and left Leija’s room when Leija started to
step towards him.
It was Dr. Conley’s opinion that he and Turvey
could not secure Leija to his bed to treat and evaluate him without
the assistance of law enforcement officials.
Leija exited his room in his hospital gown and began walking
down the hall. At this point, Atnip, Beebe, and Pickens arrived at
the scene and observed Leija standing in the hall, yelling and
screaming that people were trying to poison and kill him.
was visibly agitated and upset.
Leija
Pickens was informed by medical
personnel that Leija was ill and that he could die if he left the
hospital.
Pickens attempted to persuade Leija to return to his
room, but Leija refused and said the hospital staff was trying to
kill him.
Pickens informed Leija that no one was trying to kill
him and that he needed to let the hospital staff help him.
continued down the hallway toward the lobby area.4
Leija
Leija continued
with his aggressive behavior by pulling the remaining IV from his
arms causing blood to come out. After speaking with Pickens, Leija
faced the officers and clenched and shook his fists.
Leija caused
more bleeding when he removed the gauze and tape from his arms, and
he raised his arms and stated that this was his blood.
Atnip and
Beebe contend they gave Leija several commands to step back, calm
down, and get on his knees.
They warned Leija that if he did not
4
The video recording shows Leija continuing down the hall,
but he remains out of view of the camera until he is seen being
subdued by all three officers. Thus, the video fails to capture
that portion of the altercation where the defendants contend
Leija became increasingly agitated, aggressive, and
confrontational.
5
comply they would use a Taser on him.
After Leija did not comply
with their commands, Beebe fired the Taser at Leija with one prong
hitting him in the upper torso.
Leija.
The Taser did not appear to affect
At this point, Atnip attempted to restrain Leija by
grabbing his right arm around the wrist and elbow area.
Pickens
grabbed Leija’s left arm.
Atnip and Pickens attempted to do an
armbar takedown of Leija.
Leija continued to struggle with the
officers and they were unable to move his arms behind his back, but
they were able to turn him against the lobby wall face first.
Beebe then administered a “dry” sting on Leija’s back shoulder area
in order to relax him so they could move his arms back.
sting had no effect.
The “dry”
Atnip pushed his leg into the bend of Leija’s
right leg and the officers were able to turn Leija around and he
was pushed to the floor. Atnip and Pickens held Leija’s arms while
Beebe attempted to handcuff him.
Beebe was able to place a
handcuff on Leija’s right wrist and Pickens pulled on Leija’s left
arm as Leija was resisting Pickens’ grip.
While this struggle was
going on, Turvey appeared and injected Leija with the shot of
Haldol and Ativan.
Leija then went limp, made a grunting noise,
and vomited a clear liquid. The officers moved away from Leija and
medical personnel immediately began CPR in an effort to revive
Leija.
The attempts to revive Leija were unsuccessful and those
efforts were stopped at 7:29 p.m.
The medical examiner determined
Leija’s cause of death as respiratory insufficiency secondary to
pneumonia.
He further determined that the manner of death was
natural.
Summary Judgment Standards
The standards relevant to the disposition of a case on summary
judgment are well established.
Having moved for summary judgment
in their favor under Rule 56 of the Federal Rules of Civil
6
Procedure, defendants’ initial burden is to show the absence of
evidence to support Plaintiff's claims.
U.S. 317, 325 (1986).
"the
pleadings,
Celotex v. Catrett, 477
Defendants must identify those portions of
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits, if any," which
establish the absence of any genuine issue of material fact.
Universal Money Centers v. AT&T, 22 F.3d 1527, 1529 (10th Cir.),
cert. denied, 115 S.Ct. 655 (1994) (quoting Fed. R. Civ. P. 56(c)).
defendants’ need not negate Plaintiff's claims or disprove her
evidence, but rather, their burden is to show that there is no
evidence in the record to support her claims. Celotex, 477 U.S. at
325.
Plaintiff, as the nonmoving party, must go beyond the
pleadings and "must set forth specific facts showing that there is
a genuine issue for trial as to those dispositive matters for which
[she] carries the burden of proof."
Applied Genetics v. First
Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir. 1990).
Summary judgment is not appropriate if there exists a genuine
material factual issue.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-51 (1986). "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 non-moving
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 Plaintiff.
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.
7
As part of the summary judgment motion, the individual
defendants claim an entitlement to qualified immunity.
The
affirmative defense of qualified immunity is available to all
government officials. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
This immunity is an immunity from suit and not merely a defense to
liability. Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d
642, 644-45 (10th Cir. 1988) and England v. Hendricks, 880 F.2d 281
(10th Cir. 1989), cert. denied, 493 U.S. 1078 (1990). The test the
court must apply is an objective one which inquires into the
objective reasonableness of the official's actions.
U.S.
at
816.
Government
officials
performing
Harlow, 457
discretionary
functions will not be held liable for their conduct unless their
actions violate "clearly established statutory or constitutional
rights of which a reasonable person would have known." Id. at 818;
see
also
Clanton
v.
Cooper,
129
F.3d
1147,
1153
(10th
Cir.
1997)(quoting Harlow).
In assessing a request for summary judgment on qualified
immunity grounds, the Court must determine whether the facts, taken
in the light most favorable to the Plaintiff, establish a violation
of a federal statutory or constitutional right by the particular
defendant under consideration.
Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled in part by Pearson v. Callahan, 555 U.S. 223
(2009).
Additionally, the Court must make the determination as to
whether the federal statutory or constitutional right at issue was
“clearly
established”
at
the
time
allegedly committed the violation.
the
particular
Id. at 201.
defendant
While the Supreme
Court in Saucier required that the determination of a violation of
a federal right be the threshold inquiry, with the issue of whether
the right was clearly established being the second part of the twostep analysis, the Supreme Court later held “that the Saucier
protocol
should
not
be
regarded
8
as
mandatory
in
all
cases,
[however] we continue to recognize that it is often beneficial.”
Pearson, 555 U.S. at 236.
Illegal Seizure
Plaintiff contends Leija was subjected to an unlawful seizure
by Atnip, Beebe, and Pickens.
The Court disagrees and finds
Plaintiff has failed to satisfy her burden of establishing a
constitutional violation for an illegal seizure claim.
The Fourth
Amendment right to be free from an unreasonable seizure applies
“when officers use physical force to subdue a person or when the
individual submits to the officers’ assertion of authority.”
v. Higgs, 75 F.3d 1461, 1467 (10
th
Cir. 1996).
Pino
This Fourth
Amendment right “is not limited to criminal cases, but applies
whenever the government takes a person into custody against [his]
will.”
Id.
Not every seizure of an individual by law enforcement
officials, however, is a violation of the Fourth Amendment.
The
seizure must be unreasonable to violate the Fourth Amendment. Id.
In the context of a seizure or detention of an individual for
mental evaluation or medical care, it is appropriate for law
enforcement officials to seize such individual if the officials
“have probable cause to believe that the person presents a danger
to himself or others.”
Meyer v. Board of County Com’rs of Harper
County, Okla., 482 F.3d 1232, 1237 (10th Cir. 2007); see Pino, 75
F.3d at 1468 (“The state has a legitimate interest in protecting
the community from the mentally ill and in protecting a mentally
ill person from self-harm.”).
cause” standard.
Oklahoma law mirrors this “probable
Under Oklahoma law “[a]ny person who appears to
be or states that such person is mentally ill, alcohol-dependent,
or drug-dependent to a degree that immediate emergency action is
necessary may be taken into protective custody and detained . . .
9
.”
Okla.Stat.tit. 43A, § 5-207(A).
Furthermore, with respect to
the actions of law enforcement officials, Oklahoma law provides
“[a]ny peace officer who reasonably believes that a person is a
person requiring treatment as defined in Section 1-103 of this
title shall take the person into protective custody.”
Stat.tit. 43A, § 5-207(B).
Okla.
Under Okla. Stat.tit. 43A, § 1-103(3),
“‘Mental illness’ means a substantial disorder of thought, mood,
perception, psychological orientation or memory that significantly
impairs
judgment,
behavior,
capacity
to
recognize
reality
or
ability to meet the ordinary demands of life.”
Based on the undisputed facts in the record, the Court
concludes the seizure of Leija did not violate the Fourth Amendment
as
Atnip,
Beebe,
and
Pickens
acted
reasonably
under
the
circumstances given that probable cause existed for taking Leija
into
protective
custody.
Leija
was
demonstrating
aggressive
behavior, mental instability, and irrational thinking.
He had
removed his oxygen and IV tubes against the directives of the
medical staff and he was making statements which were delusional
and irrational.
and
was
placing
The medical staff believed he was harming himself
his
health
at
great
risk
by
his
behavior.
Believing that Leija was experiencing a substantial mental disorder
which was affecting his ability to make sound judgments, the
medical staff sought the assistance of law enforcement officials to
take Leija into protective custody so that the medical staff could
properly evaluate and treat Leija. The officers were informed that
assistance was needed with a disturbed patient. Upon their arrival
at the hospital, the officers were confronted with an agitated and
combative individual who was yelling and screaming that people were
trying to poison and kill him.
At least one of the officers was
informed by the medical staff that Leija could die if he was
allowed to leave the hospital.
In the officers’ presence, Leija
10
pulled a remaining IV tube from his arm and began to bleed.
also
removed
bleeding.
the
gauze
and
tape
from
his
arms
causing
He
more
Given these undisputed facts, it was clearly reasonable
for the officers to act in the manner they did in attempting to
seize Leija for his own protection.
The officers were confronted
with an emergency situation involving a person exhibiting signs of
a mental illness which impaired his ability to recognize his need
for medical treatment.
Clearly, probable cause existed for the
officers to attempt to take Leija into protective custody for
evaluation purposes as he was posing a threat to his own medical
health.5
The Court therefore concludes that Atnip, Beebe, and
Pickens did not violate Leija’s Fourth Amendment rights when they
seized him for protective custody purposes.6
Excessive Force
Plaintiff claims the officers subjected Leija to excessive
force in violation of the Fourth Amendment when they seized him at
the hospital.
has
alleged
The court’s initial focus is on whether Plaintiff
sufficient
facts
to
establish
a
constitutional
5
This objective probable cause determination is not
affected by the stated justification of Atnip for the seizure,
i.e., that Leija was assaulting Pickens by slinging blood.
6
The Court recognizes Plaintiff’s argument concerning the
right of an individual to refuse medical treatment. See, Cruzan
v. Director, Missouri Dept’t of Health, 497 U.S. 261 (1990); see
Granato v. City and County of Denver, 2011 WL 820730 *7
(“Although couched in somewhat tentative and speculative terms,
Cruzan nevertheless appears to recognize a constitutional right
of a competent person to refuse undesired medical treatment.”).
The present case, however, does not involve a competent
individual’s refusal of medical treatment. The undisputed facts
establish that the officers were dealing with an individual
suffering from a mental impairment who was unable to make an
informed decision about his medical care.
11
violation.
A
claim
of
excessive
force
is
governed
“reasonableness standard” of the Fourth Amendment.
by
the
Graham v.
Connor, 490 U.S. 386, 395 (1989). In Graham, the Supreme Court set
forth the test for determining whether a police officer’s use of
force was constitutionally excessive in terms of “whether the
officer’s actions [were] objectively reasonable in light of the
facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. at 397 (quotations omitted).
Thus, the relevant question with respect to Defendants is whether
the force they applied to seize Leija was “objectively reasonable
in light of the facts and circumstances confronting [them].”
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (internal quotation
marks and citations omitted).
This reasonableness standard is
clearly established for purposes of a section 1983 action, Wilson
v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995), abrogated on other
grounds by, Saucier v. Katz, 533 U.S. 194 (2001), and it requires
courts to balance several factors including the severity of the
crime, the degree of threat the subject poses to the safety of the
officer and the public, and the subject’s cooperation or
resistance. Graham, 490 U.S. at 396-97; Olsen, 312 F.3d at 1314;
Latta v. Keryte, 118 F.3d 693, 701 (10th Cir. 1997).
Summary judgment on an excessive force claim under section
1983 may not be granted where “any genuine issue of material fact
remains - regardless of whether the potential grant would arise
from qualified immunity or from a showing that the officer merely
had not committed a constitutional violation.”
Olsen, 312 F.3d at
1314 (emphasis in original)(citing Allen v. Muskogee, 119 F.3d 837,
839 (10th Cir. 1997).
The present case presents many material
disputed facts as to the objective reasonableness of the force by
Atnip, Beebe, and Pickens.
to
the
degree
of
Primarily, the record is in dispute as
resistance
confronted by the officers.
exhibited
by
Leija
after
being
The video shows Leija merely walking
12
away from the officers.
The gap in the video recording results in
a failure to have an objective viewing of what transpired after the
time Leija walked away from the officers and up until the point
where the officers are seen apprehending Leija.
The testimony of
the officers is not consistent as to the nature of the aggressive
behavior
of
Leija
during
this
critical
gap
in
the
video.
Additionally, the record is in dispute as to the degree of threat
Leija posed to the officers or the public.
patient.
He was not armed in any fashion.
Leija was a hospital
While it is alleged
that he was using his blood as a weapon, there is no evidence that
any blood was spattered on any of the officers.
Finally, an
evaluation of the reasonableness of the officers’ actions must be
made in the context of Leija’s medical condition.
The record
reflects that Leija was suffering from a significant medical
condition which severely comprised his health.
The officers’
knowledge of this condition - and their efforts to ascertain
information about Leija’s condition before attempting to use any
degree of force on him - are issues of material fact which remain
in dispute.
Consequently, the Court finds that material disputed
facts remain which preclude the issuance of summary judgment in
favor of Atnip,, Beebe, and Pickens on Plaintiff’s excessive force
claim.
Pendent State Tort Claims
Plaintiff asserts pendent state tort claims for negligence
against Marshall County and the City.
Invoking the “protective
function” immunity provision of the Oklahoma Governmental Tort
Claims Act (“OGTCA”), Okla.Stat.tit. 51, § 155(6), Marshall County
and the City contend they are entitled to summary judgment on
Plaintiff’s tort claims as their respective officers were providing
law enforcement protection in connection with their encounter with
13
Leija. The Court agrees. Section 155(6) of the OGTCA provides the
state or a political subdivision immunity for “the method of
providing police, law enforcement or fire protection.”
In Schmidt
v. Grady County, 943 P.2d 595 (Okla. 1997), the Oklahoma Supreme
Court addressed a situation where a plaintiff was injured after a
Grady County deputy sheriff had taken the plaintiff “into custody
to protect her from harming herself or others and from being harmed
by others.”
Id. at 596.
The plaintiff in Schmidt was injured when
she either jumped or fell out of the deputy sheriff’s patrol
vehicle after being placed in the front seat without any type of
restraint.
The
Oklahoma
Supreme
Court
applied
the
immunity
provision of section 156(6) of the OGTCA and concluded, “[w]e hold
subsection 156(6) provides immunity for a political subdivision for
liability for personal injuries resulting from the acts of its
employees acting within the scope of their employment in taking
into protective custody and transporting a person to the county
jail.” Id. at 598. Similarly, the Court finds Marshall County and
the City are entitled to this “protective function” immunity as the
Court has previously determined in the context of Plaintiff’s
illegal seizure claim that Atnip, Beebe, and Pickens were justified
in attempting to take Leija into protective custody for the
purposes of further medical evaluation and treatment.
Summary
judgment is therefore appropriate on Plaintiff’s pendent state tort
claims against Marshall County and the City.
Conclusion
Based on the foregoing reasons, the Court finds that summary
judgment is appropriate as to Plaintiff’s section 1983 claims for
illegal seizure and her pendent state tort claims for negligence.
Summary judgment is not appropriate on Plaintiff’s section 1983
claims for excessive force.
Consequently, the Court makes the
14
following orders:
1. Marshall County’s Motion For Summary Judgment (Dkt. No. 49)
is granted as to Plaintiff’s pendent state tort claim and Marshall
County is dismissed from this suit;
2.
Atnip’s and Beebe’s Motion For Summary Judgment (Dkt. No.
51) is granted as to Plaintiff’s section 1983 illegal seizure claim
and denied as to Plaintiff’s section 1983 excessive force claim;
and
3. The City’s and Brandon Pickens’ Motion For Summary Judgment
(Dkt. No. 53) is granted as to Plaintiff’s pendent state tort claim
against the City, granted as Plaintiff’s section 1983 illegal
seizure claim, and denied as to Plaintiff’s section 1983 excessive
force claim.
It is so ordered this 5th day of April, 2013.
15
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