Hall v. Okmulgee, City of et al

Filing 37

ORDER & OPINION by Judge Ronald A. White finding as moot in part, granting in part and denying in part defendant Gary McCollum's motion to dismiss ( 10 Motion to Dismiss Case for Failure to State a Claim ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DAMON HALL,
Plaintiff,
v.

Case No. CIV-15-060-RAW

CITY OF MUSKOGEE, et al,
Defendants.

ORDER & OPINION
Plaintiff filed his Amended Petition in the District Court for Okmulgee County,
Oklahoma on January 13, 2015, bringing claims against Gary McCollum and others for
excessive force in violation of the Oklahoma Constitution and for unlawful entry, seizure and
arrest and excessive force in violation of the Fourth Amendment of the United States
Constitution. Defendants removed the action to this court on February 12, 2015. On February
27, 2015, Mr. McCollum filed a motion to dismiss for failure to state a claim [Docket No. 10].
This case was transferred to the undersigned on July 2, 2015.
In his motion to dismiss, Mr. McCollum argues that: (1) Plaintiff’s state law excessive
force claim must be dismissed pursuant to Perry v. City of Norman, 341 P.3d 689 (Okla. 2014);
(2) Plaintiff’s Fourth Amendment claims of unlawful search and seizure, entry and arrest must be
dismissed pursuant to the doctrine of collateral estoppel and Heck v. Humphrey, 512 U.S. 477
(1994); (3) Plaintiff fails to state a claim for a Fourth Amendment violation; and (4) Mr.
McCollum is entitled to qualified immunity as to Plaintiff’s 42 U.S.C. § 1983 claims.

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FACTS AND ALLEGATIONS 1
Plaintiff alleges that on January 25, 2013, he was at home with his roommate Michael
Riley around 6:00 p.m. when he noticed several law enforcement vehicles pull into his driveway.
He observed several individuals, including Defendant, walk onto his porch through the latched
swinging gate. They began aggressively knocking on the front door. Someone said that they
were from the District Attorney’s office and that he needed to open the door. Plaintiff responded
through the door that he does not open his door to people. Then someone yelled “Mike Riley.”
Plaintiff then went and brought his roommate from the back of the house. His roommate cracked
the door and stepped onto the porch. Plaintiff then attempted to close the door, but Defendant
placed his foot in the door to prevent Plaintiff from closing it.
Plaintiff asked Defendant if he had a warrant. Defendant then told Plaintiff to step
outside. Plaintiff declined and repeatedly tried to close his front door, but Defendant prevented
him from closing it. Then without cause Defendant lunged into the home and tackled Plaintiff to
the ground. Defendant directed another officer to use his taser on Plaintiff. The officer
complied. The two officers then flipped Plaintiff to his stomach and pulled his left leg to his
back causing him excruciating pain. Plaintiff was placed in handcuffs and charged with
obstruction of justice.
Prior to the events alleged, on October 5, 2012, a misdemeanor warrant was issued for
Michael Riley. Docket No. 10, Exh. 1. 2 After the events alleged, an Information was filed

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For clarity and consistency herein, when the court cites to the record, it uses the
pagination assigned by CM/ECF.
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As argued by Defendant in its motion and not contested in Plaintiff’s response, the court
may take judicial notice of public records that relate directly to this case without converting
Defendant’s motion to dismiss into a motion for summary judgment. Tal v. Hogan, 453 F.3d
1244, 1265 n.24 (10th Cir. 2006). Of course, the court considers the documents only to show
their contents, not to prove the truth of the matters asserted therein. Id.
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against Plaintiff in the Okmulgee County District Court in Oklahoma, case number CM-13-127,
alleging one count of obstructing an officer, to wit: “on or about the 25th day of January, 2013,
by obstructing one Gary McCollum whom the defendant knew to be an officer with the District
Attorney’s Office, in the performance of said officer’s duty by obstructing Gary McCollum from
arresting Mike Riley on a warrant by pushing the door closed on the officer.” Docket No. 20,
Exh. 2, p. 1. On October 11, 2013, Plaintiff pleaded guilty in case number CM-13-127 to
obstructing an officer. Id. at 3. Judgment was entered against Plaintiff in that case on October
16, 2013. Id. at 4.
MOTION TO DISMISS
For purposes of the motion to dismiss, the court accepts as true all of the factual
allegations in the Amended Petition and construes those facts in the light most favorable to
Plaintiff. See Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284
(10th Cir. 2008). Of course, the court does not accept as true conclusory statements or legal
conclusions. “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To survive a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A plaintiff must nudge his “claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.
[T]he Twombly / Iqbal standard is a middle ground between heightened fact pleading,
which is expressly rejected, and allowing complaints that are no more than labels and
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conclusions or a formulaic recitation of the elements of a cause of action, which the Court
stated will not do. In other words, Rule 8(a)(2) still lives. Under Rule 8, specific facts
are not necessary; the statement need only give the defendant fair notice of what the
claim is and the grounds upon which it rests.
Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235-36 (10th Cir. 2013)
(quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)).
State Law Claim
In his Amended Petition, citing Bosh v. Cherokee Cnty. Gov’tal Bldg. Auth., 305 P.3d
994 (Okla. 2013), Plaintiff includes an excessive force claim in violation of the Oklahoma
Constitution. Defendant argues that the Oklahoma Supreme Court held in Perry v. City of
Norman, 341 P.3d 689 (Okla. 2014) that when a remedy exists under the Governmental Tort
Claims Act, that is the exclusive remedy; thus, the Bosh claim fails. In his response to the
motion to dismiss, Plaintiff states that he is not pursing his Bosh claim. Accordingly, the motion
to dismiss is moot as to this claim.
Federal Fourth Amendment Claims
I.

Collateral Estoppel
“Collateral estoppel bars a party from relitigating an issue once it has suffered an adverse

determination on the issue, even if the issue arises when the party is pursuing or defending
against a different claim.” Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009). Defendant
argues that Plaintiff had a full and fair opportunity to litigate the issues of his Fourth Amendment
claims of unlawful seizure inside the home, entry, and arrest at the state criminal proceedings.
Defendant has the burden of establishing issue preclusion. Gouskos v. Griffith, 122 Fed.Appx.
965, 974 (10th Cir. 2005). The Tenth Circuit has noted that “[w]hen a false-arrest defendant
desires to use facts from a previous suit prosecuted in a different court system for issue
preclusion, Oklahoma law requires the defendant to submit a complete record of the previous
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case, including all the preliminary hearing transcripts, so that the trial court in the false-arrest
case can fully review the previous record . . . .” Id. (emphasis in original). Failure to submit the
entire record is fatal to the collateral estoppel defense. Id.
Defendant submitted the Information, the Court Minute of the guilty plea and the Judgment
and Sentence. To the court’s knowledge, this is not the entire record of the previous case.
Accordingly, at this time, the motion is denied as to this issue. The court would re-assess this
issue if Defendant’s counsel were to submit the entire record and an averment that it is such.
Nevertheless, as these claims are dismissed below, that is not necessary.
II.

Heck v. Humphrey
Defendant argues that Plaintiff’s Fourth Amendment claims of unlawful seizure inside

the home, entry, and arrest are barred by Heck v. Humphrey, 512 U.S. 477 (1994). The United
States Supreme Court held in Heck that “in order to recover damages . . . for . . . harm caused by
actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been” reversed, expunged, declared invalid or
called into question by the issuance of a writ of habeas corpus under 28 U.S.C. § 2254. Id. at
486-87. The court “must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.
Id. at 487.
The Tenth Circuit has held that when “there is no disconnect between the arrest and the
crimes for which [a § 1983 plaintiff] was convicted,” Heck applies. Bryner v. Utah, 429
Fed.Appx. 739, 744 (10th Cir. 2011). In Bryner, as here, the plaintiff’s conviction “arose from
his interactions with the [officers] that he now challenges.” Id. (emphasis in original). Plaintiff

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argues that he did not obstruct the officers’ arrest of his roommate and that therefore Defendant
and the other officers had no reason to come into his home and arrest him, thus seeking “to
undermine the elements of the crime[] for which he was arrested and convicted.” Id.
Accordingly, Heck applies. Plaintiff’s Fourth Amendment claims of unlawful seizure inside the
home, entry, and arrest against Mr. McCollum are hereby dismissed.
III.

Failure to State a Claim
Defendant argues that Plaintiff has failed to state a Fourth Amendment claim. Plaintiff

claims that after his roommate, for whom Defendant had a warrant, went out onto their front
porch, Plaintiff tried to close the door to his home. He claims that Defendant then, without
cause, put his foot in the threshold to keep the door open. He claims that Defendant further still
without cause lunged into his home, tackled him, had him tased and then pulled his foot up to his
back causing him excruciating pain. While the court dismissed claims I – IV pursuant to Heck,
the Amended Petition meets the Twombly/Iqbal standards. Accordingly, the excessive force
claim remains.
IV.

Qualified Immunity
Qualified immunity balances two very important interests – “the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity is “an immunity from suit rather
than a mere defense to liability . . . it is effectively lost if a case is erroneously permitted to go to
trial.” Id. (citing Michell v. Forsyth, 472 U.S. 511, 526 (1985)).
When a defendant raises a qualified immunity defense, the court employs a two-part test.
“In resolving a motion to dismiss based on qualified immunity, a court must consider whether

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the facts that a plaintiff has alleged make out a violation of a constitutional right, and whether the
right at issue was clearly established at the time of defendant’s alleged misconduct.” Brown v.
Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) (quoting Leverington v. City of Colorado
Springs, 643 F.3d 719, 732 (10th Cir. 2011)). 3 “Whether a right is ‘clearly established’ is an
objective test: ‘The relevant dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.’” Id. (quoting Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir.
2010). “In order for the law to be clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight of authority from other courts must
have found the law to be as the plaintiff maintains.” Id. (quoting Stearns v. Clarkson, 615 F.3d
1278, 1282 (10th Cir. 2010).
“Qualified immunity gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions. When properly applied, it protects ‘all but the
plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S.Ct.
2074, 2085 (2011) (citation omitted). Qualified immunity protection will apply regardless of
whether the officer’s mistake is “a mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.” Pearson, 555 U.S. at 231.
Of course, as the court has stated above, at this stage, the court must accept as true the
allegations in the Amended Petition. Again, Plaintiff alleges that after the person for whom
Defendant had a warrant stepped outside, without cause Defendant stuck his foot in the threshold
of Plaintiff’s home, lunged into the home, tackled Plaintiff, had him tased and pulled his foot to

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District courts are permitted to exercise “sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 555 at 236.
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his back causing excruciating pain. It would be clear to a reasonable officer that lunging into an
individual’s home and assaulting him without cause is unlawful. 4 Nevertheless, claims I – IV
are barred by Heck.
As to the excessive force claim, again, the court must accept Plaintiff’s allegations as
true. An officer violates an individual’s right to be free of excessive force if his actions are not
“objectively reasonable” in light of the circumstances. Olsen v. Layton Hills Mall, 312 F.3d
1304, 1314 (10th Cir. 2002) (citation omitted). Whether an officer acted reasonably is “heavily
fact dependent.” Id. Consequently, “a qualified immunity defense is of less value when raised
in defense of an excessive force claim.” Id. (citation and brackets omitted). Under the facts
alleged, Defendant is not entitled to qualified immunity; thus, the excessive force claim remains.
CONCLUSION
Accordingly, Gary McCollum’s motion to dismiss [Docket No. 10] is hereby MOOT in
part, GRANTED in part and DENIED in part. It is moot as to the state law claims, granted as to
the Fourth Amendment unlawful entry, seizure and arrest claims, and denied as to the Fourth
Amendment excessive force claim.
IT IS SO ORDERED this 5th day of August, 2015.

______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

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“An entry into the home is unlawful when there is neither a warrant nor probable cause and
when the purported exigency is not one that would cause a reasonable officer to believe that
someone inside the home was either an imminent threat to others or was [himself] in imminent
danger.” United States v. Kerns, 663 F.3d 1173, 1191 (10th Cir. 2011). According to the
Amended Petition, none of these were present, as the person for whom the warrant was issued
was already outside and Plaintiff had done nothing to present a threat.
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