Bradford v. Burnett et al

Filing 54

ORDER by Judge Ronald A. White denying defendant City of Seminole's motion for summary judgment ( 29 Motion for Summary Judgment ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
TIFFANY BRADFORD,
Plaintiff,
v.
MICHAEL BURNETT, an individual, and
CITY OF SEMINOLE, OKLAHOMA.
Defendants.

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Case No. CIV-13-120-RAW

ORDER
Before the court is the motion of the defendant City of Seminole for summary
judgment. Plaintiff filed her complaint pursuant to 42 U.S.C. §1983 in this court on March
25, 2013, alleging that Burnett (a Seminole police lieutenant) used excessive force when he
deployed his taser (an electric shocking device) against her and that the City of Seminole’s
“policymakers ratified and approved” his misconduct.
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and . . . the movant is entitled to judgment as a matter of law.” Rule 56(a)
F.R.Cv.P. In making that determination, a court “view[s] the evidence and draw[s]
reasonable inferences therefrom in the light most favorable to the nonmoving party.” Salazar
v. City of Commerce City, 2013 WL 5303257 (10th Cir.2013).
Contemporaneously, the court has denied the motion for summary judgment of
defendant Burnett. Plaintiff faces a separate burden as to the present motion. A municipality
may not be held liable under §1983 solely because its employees inflicted injury on the

plaintiff. Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir.2010). Rather, a
plaintiff must show (1) the existence of a municipal policy or custom, and (2) that there is
a direct causal link between the policy or custom and the injury alleged. The court in Bryson
lists five examples of such policy or custom. Id. The fourth listed is ratification; this is
mentioned in plaintiff’s complaint, but she does not rely on that basis in her response to the
present motion.
Instead, plaintiff asserts municipal liability based upon “deliberate indifference.” This
is a recognized basis in the context of an alleged failure to adequately train and supervise
employees (as Bryson mentions), but plaintiff does not make this argument either. Rather,
plaintiff asserts deliberate indifference in the City’s reinstatement of Burnett after he had
been terminated by the City in response to citizen complaints. One of the complaints
evidently involved Burnett’s use of pepper spray in an incident roughly similar to the present
case.
As to a policymaker’s hiring decision, the Supreme Court has stated:
A plaintiff must demonstrate that a municipal decision reflects
deliberate indifference to the risk that a violation of a particular
constitutional or statutory right will follow the decision. Only
where adequate scrutiny of an applicant’s background would
lead a reasonable policymaker to conclude that the plainly
obvious consequence of the decision to hire the applicant would
be the deprivation of a third party’s federally protected right can
the official’s failure to adequately scrutinize the applicant’s
background constitute “deliberate indifference.”

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Bd. of County Com’rs v. Brown, 520 U.S. 397, 411 (1997).
Here, the City had terminated Burnett but were ordered to reinstate him by the
arbitrator after Burnett filed a grievance. (See Exhibit G to City’s motion). Plaintiff asserts
that “the mere fact that arbitration forced the City to rehire Burnett does not vitiate its
liability. The City’s hands were not tied – while arbitration compelled the City to rehire
Burnett, it certainly did not compel the City to put him back on the street to deal with the
very citizens that it had fired him for brutalizing.” (Plaintiff’s Brief in Opposition at 9).
Plaintiff cites no authority for this argument.
In response, the City states “it is undisputed that the arbitration order was binding and
that it required the City to not merely ‘rehire’ Burnett, but ‘reinstate’ him.” (Defendant’s
Reply at 2). Defendant City also cites no case dealing with a situation such as this. The
court likewise has found none. Under the present state of the record, the motion will be
denied. “Whether a local government has displayed a policy of deliberate indifference to the
constitutional rights of its citizens is generally a jury question.” Gibson v. County of Washoe,
290 F.3d 1175, 1194-95 (9th Cir.2002).
Viewing the record in the light most favorable to plaintiff, while the City was ordered
to reinstate Burnett, arguably some prophylactic measures regarding his service could have
accompanied the reinstatement. This is a matter for plaintiff to seek to prove. The court
emphasizes that the plaintiff’s case against the City will be limited to this aspect. Failure to
train and ratification have been abandoned as bases for liability.

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It is the order of the court that the motion for summary judgment of defendant City
of Seminole (#29) is hereby denied.
ORDERED THIS 30th DAY OF DECEMBER, 2013.

Dated this 30th day of December, 2013.

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