Easter v. Oklahoma Department of Wildlife Conservation et al
Filing
125
OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 121 Motion for Summary Judgment. (adw, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARY EASTER, as Special
Administrator for the Estate
of Billy Patrick, deceased,
Plaintiff,
v.
OKLAHOMA DEPARTMENT OF
WILDLIFE CONSERVATION; and
JARED CRAMER, in his
individual capacity,
Defendants.
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Case No. CIV-16-168-KEW
OPINION AND ORDER
This matter comes before the Court on Defendant Oklahoma
Department of Wildlife Conservation’s Motion for Summary Judgment
(Docket Entry #121).
The procedural and appellate record in this
case requires a preliminary recitation of the events which have
transpired before addressing the facts on summary judgment.
Plaintiff commenced this case on May 6, 2016, alleging
. . . an action for negligence in
violation of the Oklahoma Governmental Tort
Claims Act (“GTCA”) and the deprivation of
rights secured by the Fourth Amendment to the
United
States
Constitution,
actionable
through 42 U.S.C. § 1983 arising from the use
of deadly force by an employee of the Oklahoma
Department of Wildlife Conservation (“ODWC”)
to stop a decedent who was suspected of
committing the misdemeanor crime of fishing
without a license.
At the time he was shot, decedent was
unarmed and did not pose a threat of serious
bodily injury to the ODWC employee or anyone
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else.
The
shooting
was
objectively
unreasonable under the circumstances, and the
amount of force used was disproportionate the
(sic) any threat of harm, real or perceived.
Complaint, Docket Entry #3, pp. 1-2.
After reciting the factual allegations surrounding the its
claims, Plaintiff Mary Easter, as Special Administrator for the
Estate of Billy Patrick, deceased (the “Estate”) identifies two
bases for recovery:
(1) Excessive Force under 42 U.S.C. § 1983;
and (2) Negligence under Okla. Stat. tit. 51 § 151 et seq.
The
federal Section 1983 claim is asserted against Defendant Jared
Cramer, in his individual capacity (“Cramer”) while the state
negligence claim is expressly asserted against ODWC which is
alleged to be “statutorily liable for the actions of its employees
taken within the scope of their employment consistent with the
provisions of the GTCA.”
On October 30, 2017, this Court entered an Order denying
Cramer’s and ODWC’s requests for summary judgment and associated
claim for qualified immunity.
Specifically, it was determined
that the facts surrounding the incident resulting in the death of
Billy Patrick were in “significant dispute” on the issue of whether
Patrick “pose[d] a significant threat of death or serious physical
injury to [Cramer] or others” to justify Cramer’s use of deadly
force.
In the same Order, summary judgment on the negligence
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claim
asserted
against
ODWC
was
also
perceived dispute in the material facts.
denied
based
upon
the
See Opinion and Order,
Docket Entry #103, p. 9.
Thereafter, on October 31, 2017, Cramer appealed the denial
of qualified immunity to the Tenth Circuit Court of Appeals.
Docket Entry #105.
on appeal.
See
The case was stayed pending the determination
See Docket Entry #107.
On September 19, 2019, the Tenth Circuit reversed this Court’s
determination and remanded the case for the entry of judgment in
favor of Cramer on qualified immunity.
#114.
See Docket Entry #113,
In so doing, the Court relied upon the following set of
facts:
On April 26, 2015, at around 8:30 a.m.,
[Billy] Patrick, Carl Locke (“Locke”), and
Lyndi King (“King”) went fishing at a pond in
rural Adair County, Oklahoma. They fished on
the east side of the pond by their vehicle.
Patrick and King moved to the northwest corner
of the pond while Locke remained close to the
vehicle.
Approximately
one
hour
after
they
arrived, Oklahoma State Game Warden Cody
Youngblood (“Youngblood”) appeared at the pond
near Patrick and King.
Youngblood wrote
Patrick a ticket for fishing without a
license.
Afterward, Patrick walked over to
Locke and told him what had happened.
The
defendant-appellant
Game
Warden
Jared Cramer heard on his radio that
Youngblood
had
contacted
at
least
two
individuals for whom the State of Arkansas had
issued arrest warrants. Cramer did not know
the basis for the warrants. Cramer went to
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Youngblood’s location to assist him because
the
radio
traffic
indicated
Youngblood
intended to take the subjects into custody.
As Cramer approached the pond from the
west, he pulled in next to Youngblood on the
passenger side of Youngblood’s truck. After
exiting his vehicle, Cramer asked Youngblood
which individuals had a warrant. Youngblood
identified Patrick, who Cramer noted was
pacing.
After speaking with Youngblood, Cramer
drove to the other side of the pond where
Patrick and Locke were located. When he
arrived, Cramer asked Patrick to put his hands
on the bed of Patrick’s truck and asked
Patrick if he had any weapons. Cramer then
asked Patrick to place his hands behind his
back and point his thumbs up.
Immediately
after receiving that instruction, Patrick ran
to Cramer’s right towards the slope down to
the pond. Cramer pursued Patrick and tackled
him. Patrick and Cramer then rolled into the
pond.
As the altercation continued in the pond,
Cramer shot Patrick twice, killing him.
Although
some
testimony
regarding
the
altercation in the pond is inconsistent, the
undisputed facts establish that when Cramer
and Patrick landed in the pond, Patrick rested
on top of Cramer and Cramer was under water.
Then as the altercation persisted, Patrick
pushed Cramer under water at least one time.
At some point, Patrick rose up out of the
water, and Cramer shot him.
Little—if any—
space separated the two men at the time of the
shooting.
See Docket Entry #113, pp. 2-3.
The Tenth Circuit also noted the following:
In her briefing, Appellee suggests that
Lindi King’s testimony established that
Patrick and Cramer were not near each other at
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the time of the shooting (thus suggesting that
Cramer could not reasonably have believed he
was in danger).
At oral argument, however,
Appellee conceded that King did not quantify
the distance between Patrick and Cramer at the
time of the shooting. Indeed, King admitted
that she could not see Patrick at the time of
the shooting and she repeatedly deferred to
Locke—who she described as “the one that saw
more than [her].” Locke testified at his
deposition that Patrick was only inches away
from Cramer when Cramer shot him.
Id. at n.3.
The Tenth Circuit concluded that this set of facts did not
put Cramer on notice that the use of deadly force would result in
the violation of a clearly established right.
Id. at p. 12.
The
case was remanded for the entry of summary judgment for Cramer on
qualified immunity.
On
October
24,
2019,
this
Court
conducted
a
telephonic
conference with counsel for all litigants upon receiving the Tenth
Circuit’s opinion.
In the Opinion and Order denying summary
judgment on the negligence claim asserted against ODWC, this Court
utilized the same set of facts as employed in denying qualified
immunity on the 42 U.S.C. § 1983 excessive force claim.
The Tenth
Circuit reviewed this Court’s Opinion and Order on qualified
immunity de novo.
(10th
Cir.
2013).
Fancher v. Barrientos, 723 F.3d 1191, 1194
Easter
was
required
to
show
that
(1)
a
reasonable jury could find facts supporting a violation of a
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constitutional right that (2) was clearly established at the time
of the Defendants' conduct.
405, 418 (10th Cir. 2014).
Estate of Booker v. Gomez, 745 F.3d
In its opinion, the Tenth Circuit had
to conclude that the operative facts viewed most favorable to
Easter were not sufficient to establish a violation of clearly
established law – contrary to this Court’s conclusion that the
facts were in dispute as to whether Cramer’s fear for his life was
objectively reasonable in light of Patrick’s position and Cramer’s
position at the time Cramer shot and killed Patrick.
Indeed, as
related herein, the Tenth Circuit specifically found that Locke’s
testimony as to the position of Patrick and Cramer, stating they
were
“inches
away”
from
one
another,
testimony that they were far apart.
controlled
over
King’s
Rather than concluding that
a dispute in the facts precluded a finding that clearly established
law had not been violated, the Tenth Circuit adopted the testimony
of Locke as to their relative positions.1
Consequently, this Court
permitted the filing of a second motion for summary judgment by
1 The Tenth Circuit stated, “The undisputed facts identified by the district
court do not permit an inference that at the time of the shooting Patrick no
longer presented a threat to Cramer, whom he had seconds before pushed under
the water. [In a footnote, citing to difference in testimony between King and
Locke and adopting Locke’s version of the facts as to the proximity of Patrick
to King].
To the contrary, the undisputed record establishes that as he
attempted to evade Cramer, Patrick landed on top of Cramer as they entered the
pond and then shoved Cramer under the water during the course of the altercation.
Thus, although Patrick was unarmed, Cramer remained in a vulnerable position,
and a reasonable officer would have reason to believe that Patrick might use
the water to drown him if the altercation continued.” See Docket Entry #113,
pp. 11-12.
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the remaining Defendant, ODWC because of the Tenth Circuit’s
finding that Locke’s testimony established the positions of the
parties effectively overruled this Court’s finding of disputed
facts on this key factual point.
It would create an inconsistency
in judicial findings for the Tenth Circuit to conclude one set of
facts were established by the evidence in a light most favorable
to Easter as the non-moving party while this Court determines that
the facts on a determined point are in dispute.
Easter’s statement
that nothing required reconsideration of the first denial of ODWC’s
summary judgment ignores the Tenth Circuit’s express finding that
the undisputed facts established the reasonableness of Cramer’s
conduct.
The circumstances have changed such that consideration
of ODWC’s legal arguments on the negligence claim is warranted.
ODWC’s current summary judgment motions asserts that (1)
Easter cannot recover under the Oklahoma Governmental Tort Claims
Act
(“OGTCA”)
leadership
of
for
agency
the
ODWC,
level
actions
including
or
hiring,
inactions
training,
by
the
and/or
supervision; and (2) Cramer’s actions were objectively reasonable
and, therefore, ODWC cannot be held liable for Cramer’s negligence
while acting in the course and scope of his employment.
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
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the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law."
Universal Money Centers v. A.T. & T., 22
F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct.
655, 130 L.Ed.2d 558 (1994).
The moving party bears the initial
burden of showing that there is an absence of any issues of
material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).
A genuine issue of
material fact exists when "there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505,
2510-11, 91 L.Ed 2d 202 (1986).
In determining whether a genuine
issue of a material fact exists, the evidence is to be taken in
the light most favorable to the nonmoving party.
Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d
142 (1970).
Once the moving party has met its burden, the opposing
party
come
must
forward
with
specific
evidence,
not
mere
allegations or denials of the pleadings, which demonstrates that
there is a genuine issue for trial.
Applied Genetics v. Fist
Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir. 1990); Posey
v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).
ODWC first contends it does not know whether Easter is
bringing her negligence claim against the agency due to actions or
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inactions of the leadership – including the alleged negligent
hiring, training, and/or supervision of Cramer – or whether the
claim is brought due to Cramer’s allegedly negligent actions as an
employee of ODWC in using deadly force on Patrick.
Easter does
not shed any light on the precise nature of this claim other than
to, again, assert ODWC should not be permitted to bring another
summary judgment motion on this issue.
This Court looks to the Pretrial Order submitted by the
parties, signed by the Court, and entered of record on October 31,
2017 to ascertain how Easter expressly set out her negligence
claim.
In the initial statement, Easter set out that the claims
are for “negligence in violation of the [OGTCA] and deprivation of
rights secured by the Fourth Amendment . . . actionable through 42
U.S.C. § 1983 arising from the use of deadly force by [Cramer], an
employee of the Oklahoma Department of Wildlife Conservation . .
. to stop decedent [Patrick] . . . .”
2 (emphasis added by this Court).
See Docket Entry #106, p.
Further, the statements of
issues of fact and law in the Pretrial Order do not include any
allegations of negligent hiring, supervision, or training – only
allegations surrounding the reasonableness of Cramer’s use of
deadly force.
Id. at pp. 5-6.
Generally, “issues not contained
in the resulting pretrial order were not part of the case before
the district court.”
Cortez v. Wal-Mart Stores, Inc., 460 F.3d
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1268, 1276–77 (10th Cir. 2006) citing Youren v. Tintic School
District, 343 F.3d 1296, 1304 (10th Cir. 2003) and Wilson v.
Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002)(“[C]laims, issues,
defenses, or theories of damages not included in the pretrial order
are waived....”).
As a result, Easter did not preserve any agency
based negligence claims for adjudication in this action.
Even if Easter did preserve such claims in some form or
fashion, the discretionary function exception to the OGTCA would
preclude the assertion of such claims.
The OGTCA represents the
exclusive remedy for an injured plaintiff to recover against a
governmental entity in tort.
Tuffy's Inc. v. City of Okla. City,
212 P.3d 1158, 1163 (Okla. 2009).
The OGTCA recognizes the ability
of the state entity to claim sovereign immunity but sets out the
specific circumstances under which the state waives its immunity
and that of its political subdivisions. Okla. Stat. tit. 51, §
152.1; see also Smith v. City of Stillwater, 328 P.3d 1192, 1198
(Okla. 2014).
which
The OGTCA also sets out a list of activities for
sovereign
immunity
is
not
waived,
including
the
“[p]erformance of or the failure to exercise or perform any act or
service, which is in the discretion of the state or political
subdivision or its employees.”
Okla. Stat. tit. 51 § 155(5).
The
Oklahoma Court of Civil Appeals has found that “[i]t is . . .
settled that a [political subdivision’s] hiring, training, and
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supervising decisions are discretionary and therefore [the state]
may not be liable for damages resulting from those decisions.
Jackson v. Oklahoma City Pub. Sch., 333 P.3d 975, 979 (Okla. Ct.
Civ. App. 2014) citing Houston v. Independent School Dist. No. 89
of Oklahoma County, 949 F.Supp.2d 1104, 1109 (W.D.Okla. 2013); 51
O.S.2011 § 155(5).
Further, as our sister court in the Northern District of
Oklahoma has noted “the clear weight of authority supports finding
that hiring, training, supervision, monitoring, and retention are
actions that implicate a political entity's policy and planning
functions and therefore fall under the discretionary function
exemption of § 155(5). See Johnson v. Indep. Sch. Dist. No. 89 of
Okla. Cnty., No. CIV–15–680–D, 2016 WL 1270266, at *8 (W.D. Okla.
Mar. 31, 2016) (negligent supervision); Burris v. Okla. ex rel.
Okla. Dep't of Corrections, No. CIV–13–867–D, 2014 WL 442154, at
*9
(W.D.
Okla.
Feb.
4,
2014)
(negligent
hiring,
training,
supervision, and retention); Seals v. Jones, No. 12–DV–569–JED–
TLW, 2013 WL 5408004, at *4 (N.D. Okla. Sept. 25, 2013) (negligent
hiring and retention); Houston, 949 F. Supp. 2d at 1109 (negligent
supervision and retention); Fumi v. Bd. of Conty. Comm'rs of Rogers
Cnty., No. 10–CV–769–TCK–PJC, 2011 WL 4608296, at *6 (N.D. Okla.
Oct. 3, 2011) (negligent training and supervision); Burns v.
Holcombe, No. 09–CV–152–JHP, 2010 WL 2756954, at *15 (E.D. Okla.
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July 12, 2010) (negligent hiring, training, and supervision);
Jackson v. Okla. City Pub. Schs., 333 P.3d 975, 979 (Okla. Civ.
App.
2014)
(negligent
hiring,
training,
and
supervision.”
Langkamp v. Mayes Emergency Servs. Tr. Auth., 2017 WL 875483, at
*4 (N.D. Okla. Mar. 3, 2017), motion for relief from judgment
granted,
2017
WL
1102650
(N.D.
Okla.
Mar.
23,
2017).
Consequently, Easter is barred from pursuing a claim against ODWC
based in the negligence of the leadership of the entity including
claims for negligent hiring, supervision, and training as exempted
under the OGTCA.
Easter’s remaining avenue for recovery under a negligence
theory is based upon Cramer’s actions as an employee of the ODWC.
As with any negligence action, “[t]he threshold question . . . is
whether the defendant owed a duty of care to the plaintiff.”
Morales v. City of Oklahoma City ex rel. Oklahoma City Police
Dep't, 230 P.3d 869, 878 (Okla. 2010).
is very specific:
“A police officer's duty
it is to use only such force in making an arrest
as a reasonably prudent police officer would use in light of the
objective circumstances confronting the officer at the time of the
arrest.”
Id. at 880.
In its analysis, the Tenth Circuit specifically found that
“even taking the facts in the light most favorable to Plaintiff,
Patrick was on one knee; was only partially turned; and, when
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Cramer shot him, remained in a position to resume what a reasonable
officer could have believed was an attempt to drown Cramer.”
Court
further
determined
that
“although
Patrick
was
The
unarmed,
Cramer remained in a vulnerable position, and a reasonable officer
would have reason to believe that Patrick might use the water to
drown him if the altercation continued.”
These findings leave no
doubt that the Tenth Circuit’s interpretation of the facts were
that the level of deadly force used by Cramer was objectively
reasonable in light of the objective circumstances presented.
The
Tenth Circuit considered several of the same factors evaluated by
the Oklahoma Supreme Court in Morales to reach its conclusion of
reasonableness.
P.3d at 880.
See Docket Entry #113 at pp. 9-10; Morales, 230
Again, an unacceptable inconsistency would result
if this Court were to interpret the facts or reach conclusions
found by the Tenth Circuit – even in an interlocutory appeal.
Because Cramer’s actions were objectively reasonable, he did not
violate the legal duty to Patrick in the use of deadly force.
Easter’s negligence claim must fail.
IT IS THEREFORE ORDERED that Defendant Oklahoma Department of
Wildlife Conservation’s Motion for Summary Judgment (Docket Entry
#121) is hereby GRANTED.
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IT IS SO ORDERED this 24th day of June, 2020.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
14
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