Allen v. Lang et al

Filing 154

ORDER by Judge Ronald A. White granting motions for summary judgment as to the federal claims and dismissing without prejudice the remaining state law claims ( 110 Motion to Dismiss Party ; 120 Motion for Summary Judgmen t ; 121 Motion for Summary Judgment ; 122 Motion for Summary Judgment ; 123 Motion for Summary Judgment), granting defendant Willie Hopkins' request to withdraw ( 124 Motion to Withdraw Documents(s)) and finding the remaining motions as moot ( 133 Motion in Limine ; 134 Motion in Limine ; 135 Motion in Limine ; 136 Motion to Strike ; 136 Motion to Withdraw Attorney(s)) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

DENNIS RAY ALLEN,
Plaintiff,
v.

Case No. CIV-16-296-RAW

1. KAY LANG, in her individual capacity
and in her official capacity as Mayor of
Boynton,
2. WILLIE G. HOPKINS, in his individual
capacity and in his official capacity as an
employee of Boynton,
3. CANDACE LANG, in her individual
capacity and in her official capacity as an
employee of Boynton, and
4. TOWN OF BOYNTON,
Defendants.
ORDER1
Before the court are the motions for summary judgment filed by Kay Lang [Docket No.
120], Willie Hopkins [Docket No. 122],2 and the Town of Boynton [Docket No. 123]. Willie
Hopkins and the Town of Boynton joined Kay Lang’s motion. Also before the court is Candace
Lang’s pro se motion, which the court construes as a motion for summary judgment [Docket No.
110].3

1

For clarity and consistency herein, when the court cites to the record, it uses the
pagination assigned by CM/ECF.
2
The court hereby grants Mr. Hopkins’ request to withdraw Docket No. 121 [Docket No.
124].
3
Candace Lang has previously filed two untitled motions requesting that her name be
removed from this lawsuit. Both motions were construed as motions to dismiss and denied.
Although her latest untitled motion is similar to her first two and was docketed as another motion
to dismiss, the court construes it as a motion for summary judgment. The court construes
liberally the pleadings of all pro se litigants. Hall v. Bellmon, 93 F2d 1106, 1110 (10th Cir.
1991).

I.

STANDARD OF REVIEW
Summary judgment will be granted if there is no genuine issue as to any material fact and

the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
applying the summary judgment standard, the court views the evidence and draws reasonable
inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit
Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). At this stage, however, Plaintiff may
not rely on mere allegations, but must have set forth, by affidavit or other evidence, specific facts
in support of his Second Amended Complaint. Id.
“Conclusory allegations that are unsubstantiated do not create an issue of fact and are
insufficient to oppose summary judgment.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136
(10th Cir. 2003) (citation omitted).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or (B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). While the court may consider affidavits at the summary judgment
stage, “the nonmovant’s affidavits must be based upon personal knowledge and set forth facts
that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient.”
Hall, 935 F.2d at 1111 (emphasis added). The court disregards “inadmissible hearsay statements
contained in affidavits, as those statements could not be presented at trial in any form.” Argo v.

2

Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (emphasis in
original).
“A movant is not always required to come forward with affidavits or other evidence to
obtain summary judgment; once the movant points out an absence of proof on an essential
element of the nonmovant's case, the burden shifts to the nonmovant to provide evidence to the
contrary.” Hall, 935 F.2d at 1111, n. 5. Additionally, “the court need consider only the cited
materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
Qualified Immunity
When a defendant raises a qualified immunity defense in response to a motion to dismiss
or a motion for summary judgment,4 the burden shifts to the plaintiff and the court employs a
two-part test. Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012); Brown v. Montoya, 662
F.3d 1152, 1164 (10th Cir. 2011). A plaintiff must show that: (1) the defendant violated a
constitutional right, and (2) the constitutional right was clearly established at the time of the
defendant’s alleged misconduct.5 Id. A plaintiff must establish both prongs to defeat a qualified
immunity defense. Id. The court has discretion to decide which of the two prongs to address
first in light of the circumstances of the case. Brown, 662 F.3d at 1164. Only if a plaintiff first
meets this two-part test does the defendant bear the traditional summary judgment burden to
show that there are no genuine disputes of material fact and that he or she is entitled to summary
judgment as a matter of law. Kock v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011).

4

“The legally relevant factors for a qualified immunity decision will be different at the
summary judgment state – no longer can the plaintiffs rest on facts as alleged in the pleadings.”
Stonecipher v. Valles, 759 F.3d 1134, 1148, n.9 (10th Cir. 2014).
5
The court is not to “define clearly established law at a high level of generality.” City and
Cnty. of San Francisco, Calif. v. Sheehan, 135 S.Ct. 1765, 1775-76 (2015).
3

II.

UNDISPUTED MATERIAL FACTS6

The Parties


Plaintiff is an elderly man of slight build.



At the time of the incident giving rise to this litigation, Kay Lang was the mayor of the
Town of Boynton.



Both Candace Lang and Willie Hopkins were hired by previous mayors, not by Kay
Lang.



Candace Lang was hired as a volunteer assistant city clerk in April of 2014 and approved
by the city council in July of 2014. She was terminated from her position as clerk in July
of 2016 following a finding of “financial discrepancies.”



Willie Hopkins was hired as the Town’s water maintenance person in 2014. Kay Lang
was a board member when Willie Hopkins was hired and recalls that his hiring was
approved unanimously. Kay Lang was not aware of any disciplinary action taken against
Willie Hopkins for any misbehavior as the Town’s water maintenance person while she
was mayor. After the March 14, 2016 incident with Plaintiff, Willie Hopkins either
resigned or was terminated from his position.7

6

The court notes that Plaintiff failed to comply with Local Civil Rule 56.1, which requires
that a response brief in opposition to a motion for summary judgment “begin with a section
responding, by correspondingly numbered paragraph, to the facts that the movant contends are
not in dispute and shall state any fact that is disputed.” LCvR 56.1(c) (emphasis in original).
Instead, Plaintiff begins with facts he deems undisputed.
The court further notes that many of Plaintiff’s proposed undisputed facts are not material
as required by LCvR 56.1(c) and/or are supported only by conclusory allegations and
inadmissible hearsay statements contained in his own affidavit. The court disregards each of
those proposed “facts,” as they do not create an issue of fact and are insufficient to oppose
summary judgment.
7
According to Kay Lang, Willie Hopkins resigned. Docket No. 120, Exh 10, @ 8.
Plaintiff avers he has been present when both Willie Hopkins and Candace Lang said that Kay
Lang fired Willie Hopkins in retaliation for not giving her a “kick back.” Docket No. 128, Exh.
4



Kay Lang is Candace Lang’s stepmother. Candace Lang and Willie Hopkins have a
close relationship, including a child together.

The March 14, 2016 Incident


On March 9, 2016, Plaintiff requested records from the Town of Boynton. Plaintiff
spoke with Candace Lang about his request that day. Plaintiff avers that she was hostile
towards his request.



On March 14, 2016, at about 3:00 p.m., Kay Lang called Plaintiff to let him know the
records were available and that he could pick them up from her house. He declined
because he was not feeling well.



Later in the afternoon on March 14, 2016, Kay Lang called Plaintiff and told him she
would be at City Hall around 6:00 p.m. if he wanted to pick up the records at that time.
Plaintiff declined because he still was not feeling well.



Plaintiff called Kay Lang later that day and agreed to meet her at City Hall at 6:00 p.m.



Candace Lang testified that on the afternoon of March 14, 2016, after returning from
errands in Tulsa, she and Willie Hopkins stopped by Kay Lang’s home. Additionally, a
text message shows Kay Lang directing Candace Lang to call her that afternoon.



At City Hall, Plaintiff was met by Kay Lang and Eloise Greer, a Town council member.



Kay Lang handed Plaintiff a brown envelope, ostensibly containing the results of his
records request.



Plaintiff opened the envelope, quickly thumbed through it, and then told Kay Lang that
the contents of the envelope were not what he wanted and that he was going home.

1, @ 9-10. In any event, shortly after the March 14, 2016 incident, Willie Hopkins was no
longer employed by the Town.
5



Eloise Green requested he note his refusal of the documents on the front of the envelope.
Plaintiff refused to sign the envelope and said he was going home.



At some point, Willie Hopkins entered the room and accused Plaintiff of having a gun,
which Plaintiff denied. Plaintiff lifted his shirt and emptied his pockets to show he did
not have a gun. Kay Lang did not tell Plaintiff to do this. There is no evidence that
anyone told Plaintiff to do this.



Plaintiff testified that he backed up into the middle of the room when Willie Hopkins
warned him not to come forward any further and that Willie Hopkins followed him as he
backed up and punched him in his left eye. Plaintiff avers that afterwards, Candace Lang
forced a chair under him and pushed him towards the front door. Plaintiff avers that the
physical contact by Willie Hopkins and Candace Lang left him with a fracture of his eye
socket and serious injuries to his head, back and neck. Plaintiff avers that Kay Lang took
a video of the incident.



After the incident, Plaintiff used his cell phone to call the Sheriff and left City Hall under
his own power.



After giving his statement to police, Plaintiff was driven to the hospital by Ronald Ray,
who testified that he had to coerce Plaintiff to go because he did not want medical
treatment.



Plaintiff testified that Kay Lang never said anything negative to him, threatened him, or
physically touched him in any way at any time. Plaintiff testified that the only person
who made physical contact with him other than Willie Hopkins was Candace Lang “with
the chair.”

6



Plaintiff testified that Kay Lang did not force him to go to City Hall or prevent him from
leaving City Hall.



Candace Lang testified that Kay Lang never contacted her to arrange an assault on
Plaintiff and that Kay Lang said she would have Eloise Greer accompany her when
Plaintiff came to pick up the records on March 14, 2016. Candace Lang further testified
that she was not present in City Hall on March 14, 2016 during the incident giving rise to
this litigation.



Willie Hopkins avers that Kay Lang never contacted him to meet her at City Hall on
March 14, 2016, to assault and/or batter Plaintiff in any manner, to restrict Plaintiff’s
movement in any way, or to arrest Plaintiff.



Kay Lang avers that she never conspired with Willie Hopkins and/or Candace Lang to
ambush, assault, batter, or retaliate against Plaintiff or to prevent him from leaving City
Hall.

Emotional Distress following March 14, 2016


Plaintiff avers that he is terrified to go to City Hall or other places where he might be
isolated with Defendants.



Plaintiff’s wife testified that he has not sought counseling, taken medication or been
diagnosed with depression or anxiety as a result of the incident. Plaintiff’s son testified
that his dad never told him he was making emotional distress claims and that he does not
know if his dad has sought counseling.

Records Request


In his April 29, 2016 records request, which is the subject of his Oklahoma Open Records
Act cause of action, Plaintiff requested the following documents, most from January 1,

7

2015 to April 29, 2016: any sound and video recordings, including of the meeting
between Plaintiff and the individual Defendants on March 14, 2016; copies of contracts
and other documents showing any financial arrangement between the city and Leonard
Lang;8 documents showing payments to Candace Lang; certain phone bills and records;
city council meeting minutes; bank statements; election notices and ballots; proof of
liability insurance; and tax records.


On July 28, 2017, sound recordings identified by Kay Lang were made available to all
counsel for all parties and Candace Lang, pro se.



Kay Lang avers that she does not know of any items responsive to Plaintiff’s requests for
video recordings, contracts with Leonard Lang, or election notices and ballots. She also
avers that she has provided Plaintiff with all documents in her possession that were
responsive to his records request.



III.

Plaintiff avers that he was denied access to the records he requested.

FEDERAL CLAIMS
Plaintiff brings claims against all Defendants pursuant to 42 U.S.C. § 19839 for alleged

violations of his First and Fourth Amendments. He alleges they violated his First Amendment

8

Leonard Lang is Kay Lang’s husband and Candace Lang’s father.
In his Second Amended Complaint, Plaintiff states that his “claims are actionable under
Section 1983 because they seek relief for violations of Plaintiff’s rights under the First and
Fourth Amendments to the United States Constitution, and under Okla. Const. Art. 2, §§ 1, 3, 22,
26, 30.” Docket No. 66, at 4. The court is confident Plaintiff meant that he had a claim under
the Oklahoma Constitution as well as under § 1983, not that the two were somehow intertwined.
In any event, Plaintiff did not respond to Defendants’ motion for summary judgment as to any
claim based on the Oklahoma Constitution. As noted by Defendants, “the Oklahoma legislature
has not enacted a statutory mechanism to allow injured parties to bring claims for violations of
their constitutional rights.” Poff v. Oklahoma Dept. of Human Srvcs., No. CIV-15-936-R, 2017
WL 2468978, at *2 (W.D. Okla. June 7, 2017) (citations omitted). Additionally, this court
9

8

rights by retaliating against him for his records requests. He alleges they violated his Fourth
Amendment rights by using unreasonable force against him and wrongfully arresting him.
First Amendment
Plaintiff argues that he was retaliated against for exercising his First Amendment rights.
To recover on his First Amendment retaliation claim, Plaintiff must establish that: (1) he was
engaged in constitutionally protected activity, (2) the Defendants’ actions caused him to suffer an
injury that would chill a person of ordinary firmness from continuing to engage in that activity,
and (3) the Defendant’s actions were substantially motivated as response to his constitutionally
protected conduct. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). This claim fails on
the first prong. The First Amendment does not compel private persons or governments to supply
information. Shero v. City of Grove, Okla., 510 F.3d 1196, 1201 (10th Cir. 2007). Plaintiff has
no constitutionally recognized right to records from the Town, only a state right under the
Oklahoma Open Records Act. Id. at 1202. The summary judgment motions are granted as to
this claim.
Fourth Amendment
Plaintiff brings his Fourth Amendment claims against Defendants for unreasonable force
and wrongful arrest. As an initial matter, there is no evidence of an arrest, lawful or otherwise.
According to the undisputed material facts, Willie Hopkins, the Town’s water maintenance
person, rushed in and said Plaintiff had a gun. Plaintiff voluntarily showed that he did not have a
gun. Willie Hopkins then came toward Plaintiff and punched him. Plaintiff avers that Candace

previously dismissed any claim pursuant to Bosh v. Cherokee Cty. Bldg. Augt., 305 P.3d 994,
1001 (Okla. 2013). Nevertheless, as Defendants suggest, the court declines to exercise
supplemental jurisdiction over any remaining state constitutional claim.
9

Wallace, a city clerk, then pushed him toward the door in a chair. Plaintiff called the Sheriff and
left City Hall under his own power. Plaintiff was never arrested.
Excessive Force Claim against the Town
A municipality may not be held liable under § 1983 solely because its employees inflict
an injury on a plaintiff. Monell v. Department of Soc. Servs. of City of New York, 436 U.S.
658, 694 (1978). “‘Rather, to establish municipal liability, 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.’” Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir.
2010).
In this case, Plaintiff was punched by a water maintenance person and possibly pushed in
a chair by a city clerk. The mayor of the Town was present and possibly recorded the incident,
but never said anything negative to Plaintiff, threatened him, or physically touched him in any
way at any time. Plaintiff has not shown any policy or custom of the Town of Boynton to endow
its water maintenance people, its city clerks, or even its mayor with policing powers. He has
shown no evidence of any policy or custom of the Town of Boynton that is directly linked to the
injury he suffered. The Town’s motion for summary judgment is granted as to this claim.
Excessive Force Claim against the Individual Defendants
Kay Lang and Willie Hopkins have raised the defense of qualified immunity. As
Candace Lang is pro se, the court will make the qualified immunity determination as to her as
well. The burden then is on Plaintiff to show whether the individual Defendants violated a
constitutional right and whether the constitutional right was clearly established. As the Supreme
Court has directed, the court does not “define clearly established law at a high level of
generality.” Sheehan, 135 S.Ct. at 1775-76. “Qualified immunity is no immunity at all if

10

‘clearly established’ law can simply be defined as the right to be free from unreasonable searches
and seizures.” Id. at 1776.
To prevail on a claim of excessive force under § 1983, a plaintiff must establish that a
defendant acting under color of state law “seized” him. Arnold v. Curtis, 359 Fed.Appx. 43, 47
(10th Cir. 2009). “Seizure” means a “governmental termination of freedom of movement
through means intentionally applied.” Id. Such a claim generally involves a police or prison
officer, and the “ultimate question ‘is whether the officers’ actions are objectionably reasonable
in light of the facts and circumstances confronting them.’” Cavanaugh v. Woods Cross City, 625
F.3d 661, 664 (10th Cir. 2010) (citation omitted).
In this case, as the court stated above, Plaintiff was punched by a water maintenance
person and possibly pushed in a chair by a city clerk. The mayor of the Town was present and
possibly recorded the incident, but never said anything negative to Plaintiff, threatened him, or
physically touched him in any way at any time. Most importantly, Plaintiff has shown no policy
or custom of the Town of Boynton to endow its water maintenance people, its city clerks, or its
mayor with policing powers. Thus, when Willie Hopkins punched Plaintiff and if Candace Lang
pushed him, they were not acting under color of state law. Plaintiff has no constitutional right
against being punched or pushed by a civilian with no police powers. He certainly has no such
clearly established right. The individual Defendants are entitled to qualified immunity. The
individual Defendants’ motions for summary judgment are granted as to this claim.

IV.

STATE LAW CLAIMS
As noted above, the court declines to exercise jurisdiction over any remaining state

constitutional claim. Plaintiff has also brought state claims for assault and battery; civil

11

conspiracy; intentional infliction of emotional distress; negligent hiring, supervision, and
retention; and violations of the Oklahoma Open Records Act. As the federal claims have been
dismissed, the court declines to exercise supplemental jurisdiction over these state law claims.
“Section 1367(c) provides conditions where district courts may decline to exercise
supplemental jurisdiction, and the Supreme Court repeatedly has determined that supplemental
jurisdiction is not a matter of the litigants’ right, but of judicial discretion.” Estate of Harshman
v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004) (citations
omitted). The Tenth Circuit has stated, “[w]hen all federal claims have been dismissed, the court
may, and usually should, decline to exercise jurisdiction over any remaining state claims.”
Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) (citing 28 U.S.C. § 1367(c))
(emphasis added). “Certainly, if the federal claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
The court has considered the factors in 28 U.S.C. § 1367(c).10 As Defendants point out,
Plaintiff’s state constitutional claims may raise issues of novel or complex state law.
Additionally, the numerous state law claims substantially predominated over the federal claims,
which have now been dismissed. The court has also considered and weighed the values of
judicial economy, convenience, fairness, and comity. Carnegie-Mellon University v. Cohill, 484

10

(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
28 U.S.C.A. § 1367.
12

U.S. 343, 350 (1988). The balance of these factors indicates this case belongs in state court; thus
the court declines to exercise jurisdiction over the remaining state law claims.

V.

CONCLUSION
For the reasons stated above, the motions for summary judgment [Docket No. 110, 120,

122 and 123] are GRANTED as to the federal claims. The court dismisses without prejudice the
remaining state law claims. The motions for summary judgment, therefore, are moot as to the
state law claims. As noted above, Willie Hopkins’ request to withdraw Docket No. 121 [Docket
No. 124] is granted. The remaining motions [Docket Nos. 133, 134, 135, and 136] are also
moot.
IT IS SO ORDERED this 19th day of September, 2017.

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

13