Cantrell v. Johnson et al

Filing 93

OPINION AND ORDER by District Judge James H. Payne: granting 66 Defendants' Motion for Summary Judgment (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DONNA CANTRELL, as Next
Friend of GARY LYONS,
Plaintiff,
v.
MISTY JOHNSON, in her
individual capacity, et al.,

Defendants.

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Case No. 16-CV-400-JHP

OPINION & ORDER
Before the Court is a Motion for Summary Judgment filed by Defendants
Misty Johnson and the Board of County Commissioners of Latimer County (Dkt.
66). After consideration of the briefs, and for the reasons stated below, the Motion
is GRANTED.
BACKGROUND
On July 29, 2016, officials with the Latimer County Sheriff’s Office
(“LCSO”), along with other state and local law enforcement officials, conducted a
raid on the shop and residence at the ranch property of the brother of Gary Lyons
(“Mr. Lyons”). (Dkt. 66, at 1 (Defendants’ Undisputed Fact No. 1)). The raid was
conducted pursuant to two search warrants signed by a state District Court Judge.
(Dkt. 66-5 (Search Warrants)). Law enforcement officials were searching for
evidence of illicit drug possession. (Id.). Defendant Misty Johnson (“Deputy

Johnson”), then a Deputy with the LCSO, was assigned to secure and search the
shop building and the surrounding area. (Dkt. 66-1 (“Johnson Deposition I”),
50:12-15). Deputy Johnson and other officers in her assigned unit approached the
shop building in marked patrol vehicles with lights activated. (Johnson Deposition
I, 40:6-18). Several officers were in the patrol vehicle with Deputy Johnson,
including Latimer County Deputy Cody Donoley and John Whiteaker, Chief of
Police of the Town of Panama. (Johnson Deposition I, 38:20-39:2).1 Deputy
Johnson had been informed that multiple individuals were suspected to be on the
property, and that gun violations and narcotic drugs were suspected to be found
during the raid. (Johnson Deposition I, 45:20-25).
As Deputy Johnson’s vehicle approached the shop building, officers noticed
a man standing near the shop building, behind a pickup truck, now identified as
Mr. Lyons. (Dkt. 66-2 (“Donoley Decl.”), at 2); Dkt. 66-3 (“Whiteaker Decl.”), at
2; Dkt. 66-4 (“LCSO Incident Report”), at 26-27). Deputy Johnson advised the
officers in her vehicle that she would secure him. (Dkt. 66, at 2 (Defendants’
Undisputed Fact No. 4).

As the vehicle stopped, Deputy Donoley, Chief

1

Plaintiff disputes whether a fourth person, trainee Cynthia Hicks, was present in the vehicle
with Deputy Johnson. (See Dkt. 74, at 2). It is not necessary, however, to determine whether
Cynthia Hicks was present in order to decide whether summary judgment is appropriate.
Therefore, the Court disregards Cynthia Hicks’ statement in making its determination on
Defendants’ Motion.

2

Whiteaker, and Deputy Johnson exited the vehicle, with all three yelling words to
the effect of, “Police,” “law enforcement,” and “search warrant.” (Donoley Decl.,
at 2-3; Whiteaker Decl., at 2; LCSO Incident Report, at 26-27). Mr. Lyons denies
hearing any officer yelling these statements, but he does not dispute that the
officers yelled such statements. (Dkt. 66-7 (“Lyons Deposition I”), 44:21-24; Dkt.
74-5 (“Lyons Deposition II”), 41:1-19).
Deputy Johnson moved toward the pickup, repeatedly shouting at Mr.
Lyons, whom she did not know or recognize, to stop and get on the ground.
(Johnson Deposition I, 9:13-15; 50:4-7; 52:10-12).

Deputy Johnson was

particularly concerned that she could not see one of Mr. Lyons’ hands and that he
could be armed with a weapon. (Id. at 53:6-54:13). Despite the order to do so, Mr.
Lyons did not get on the ground. (Id. at 50:23-51:10; 52:10-12; 55:1-11). Mr.
Lyons does not dispute that Deputy Johnson ordered him to get on the ground,
although he testified at deposition that he did not hear any such order. (Lyons
Deposition I, 44:21-24; 45:23-25). 2

2

In support of their Motion, the Defendants submitted a Declaration of Officer John Ford, who
was present during the raid. (Dkt. 66-12). In the Declaration, Officer Ford states that Mr. Lyons
admitted to being non-compliant when Deputy Johnson ordered him to get on the ground. (Id.).
Following the takedown, Mr. Lyons allegedly stated that he did not want to get on the ground
because it was muddy, he did not want to be disrespected, and he was tired of the sheriff’s
department coming out to the property and searching and disrespecting him. (Id. at 1-2).

3

It is disputed whether Mr. Lyons turned away from Deputy Johnson
following her commands, and whether Mr. Lyons began to walk away from
Deputy Johnson.

(Compare LCSO Incident Report, at 27 (Misty Johnson

Narrative) (“Gary then turned away from me as if to walk away or run”) and Lyons
Deposition I, 44:1-4 (Q. How did you—and just so I’m straight, at no time did you
turn away from her or move from her; correct? A. Yes.”)). However, it is
undisputed that Mr. Lyons remained standing for approximately twenty seconds as
Deputy Johnson approached him. (Lyons Deposition I, 45:11-14).
After Mr. Lyons failed to get on the ground, Deputy Johnson approached
Mr. Lyons and performed an “arm bar” technique on Mr. Lyons in order to take
him to the ground.

(LCSO Incident Report, at 27).

3

Deputy Johnson then

Defendants also submit a statement from Officer Ford, which repeats the same statements. (Dkt.
66-13). In Response, Plaintiff disputes that Deputy Johnson issued any commands, and she
asserts the Ford Declaration and Statement are inadmissible hearsay. It is unclear whether
Plaintiff specifically disputes that Mr. Lyons made those statements. Defendants argue the Ford
statement is not hearsay, because it is not offered to prove the truth of the matter asserted, but
rather to show that Deputy Johnson issued commands, that Mr. Lyons heard them, and that he
failed to comply with them. Because it is not necessary to the determination of Defendant’s
Motion, the Court will not rely on Officer Ford’s statement and therefore will not determine the
admissibility of Officer Ford’s statement or the extent to which Plaintiff disputes that Mr. Lyons
admitted noncompliance with Deputy Johnson’s orders on the day of the raid.
3
In her Response, Plaintiff disputes that Deputy Johnson performed an “arm-bar” technique or
that she performed it in accordance with her training. (Dkt. 74, at 4). Plaintiff points out that
Deputy Johnson refused to reenact her purported use of the technique during her deposition.
(See Dkt. 74-2 (“Johnson Deposition II”), 91:9-92:4). However, Deputy Johnson explained she
was reluctant to perform the technique at the deposition because she was wearing a dress and
therefore uncomfortable with exposing herself while performing the technique. (Johnson

4

handcuffed Mr. Lyons behind his back while on the ground, and as she raised him
from the ground, she noticed Mr. Lyons was bleeding from his forehead. (LCSO
Incident Report, at 27; Dkt. 66, at 4 (Defendants’ Undisputed Fact No. 12)). An
ambulance was summoned to Mr. Lyons’ aid, but Mr. Lyons refused medical
treatment upon its arrival, apart from cleaning the wound and applying a bandage
to the wound area. (Dkt. 66-14 (EMS Patient Care Report)). Mr. Lyons was then
transported to the Latimer County Jail, where he again refused medical treatment.
(Dkt. 66-15 (Jail Entry Log); Dkt. 66-16 (EMS Patient Care Report)). After being
bonded out of jail, Mr. Lyons went to his residence. (Dkt. 66, at 5 (Defendants’
Undisputed Fact No. 16).

Later that morning, Mr. Lyon’s girlfriend Donna

Cantrell (“Plaintiff” or “Ms. Cantrell”) noticed that Mr. Lyons appeared
disoriented, and she took him to the Indian Clinic in Talihina, Oklahoma. (Dkt. 66,
at 6 (Defendants’ Undisputed Fact No. 17)). He was then transferred to Saint
Francis Hospital in Tulsa, Oklahoma, where he was determined to have a brain
bleed. (Id.). Mr. Lyons remained in the hospital for treatment for approximately
two weeks. (Id.).

Deposition II, 91:9-92:4). Moreover, Plaintiff fails to produce any evidence to dispute Deputy
Johnson’s statement that she performed the arm-bar technique to take down Mr. Lyons.
Accordingly, the Court concludes Plaintiff fails to raise a genuine issue with respect to this fact.

5

Ms. Cantrell filed an Amended Complaint as “Next Friend” of Mr. Lyons
on March 28, 2017. (Dkt. 48). In the Amended Complaint, as amended pursuant
to the Court’s Order adding the Board of County Commissioners of Latimer
County (“Board”) as a party defendant (Dkt. 50), Plaintiff asserts claims for (1)
relief under 42 U.S.C. § 1983 against Deputy Johnson for unlawful use of
excessive force, and (2) relief for negligence pursuant to the Oklahoma
Governmental Tort Claims Act (“OGTCA”), 51 Okl. Stat. §§ 151 et seq., against
the Board under a theory of respondeat superior for Deputy Johnson’s actions.
(Dkt. 48, ¶¶ 24-29).4
On September 5, 2017, both Defendants filed a Motion for Summary
Judgment on Plaintiff’s claims against them. (Dkt. 66). Plaintiff filed a Response
in opposition on September 15, 2017. (Dkt. 74). Defendants filed a Reply on
October 2, 2017. (Dkt. 78). The Motion is fully briefed and ripe for review.
DISCUSSION
Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the movant is entitled to a judgment as a matter of law.” Fed.

4

The Amended Complaint identifies “John Does 1-10, in their individual capacities” as party
defendants but makes no allegations against these defendants. Moreover, none of these
defendants has been identified or served, and the time for service has lapsed. Accordingly, these
defendants are properly dismissed from this case.

6

R. Civ. P. 56(a). A dispute is genuine if the evidence is such that “a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of
the suit under the governing law.”

Id.

In making this determination, “[t]he

evidence of the non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Id. at 255.
However, a party opposing a motion for summary judgment may not simply
allege there are disputed issues of fact; rather, the party must support its assertions
by citing to the record or by showing the moving party cannot produce admissible
evidence to support the fact. Fed. R. Civ. P. 56(c). See Cone v. Longmont United
Hosp. Ass’n, 14 F.3d 526, 530 (10th Cir. 1994) (“Even though all doubts must be
resolved in [the nonmovant’s] favor, allegations alone will not defeat summary
judgment.”) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
Moreover, “[i]n a response to a motion for summary judgment, a party cannot rely
on ignorance of facts, on speculation, or on suspicion and may not escape summary
judgment in the mere hope that something will turn up at trial.” Conaway v. Smith,
853 F.2d 789, 794 (10th Cir. 1988) (citations omitted). Thus, the inquiry for this
Court is “whether the evidence presents a sufficient disagreement to require

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submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251-52.
I.

Real Party in Interest
First, Defendants argue Ms. Cantrell is not the real party in interest and lacks

legal authority to bring this suit on behalf of Mr. Lyons as next friend. In response,
Mr. Lyons submitted a Notice of Ratification, in which he agrees to authorize
continuation of the action and agrees to be bound by the lawsuit’s result. (Dkt.
73). With the Notice of Ratification having been filed, Defendants concede that its
argument is moot. (Dkt. 78, at 5 n.2). Accordingly, the Court finds Defendant’s
argument regarding the real party in interest to be moot. See Fed. R. Civ. P.
17(a)(3); 12 Okl. St. § 2017(A).
II.

Excessive Force
Ms. Cantrell asserts a claim against Deputy Johnson pursuant to 42 U.S.C. §

1983 for unlawful use of excessive force against Mr. Lyons. (Dkt. 48, ¶¶ 24-27).
Claims of excessive force committed by law enforcement during an investigatory
stop or other “seizure” of a free citizen are evaluated under the Fourth Amendment
to the United States Constitution and its “reasonableness standard.” Graham v.
Connor, 490 U.S. 386, 395 (1989). This standard requires “careful attention to the
facts and circumstances of each particular case, including the severity of the crime
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at issue, whether the suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight.” Id. at 396.
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. Accordingly, “[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates the Fourth
Amendment.”

Id. (citation omitted).

The reasonableness determination must

account for the “split-second judgments” in “tense, uncertain, and rapidly
evolving” circumstances that police officers must often make.

Id. at 397.

However, the reasonableness inquiry in an excessive force case is an objective one:
“the question is whether the officers’ actions are ‘objectively reasonable’ in light
of the facts and circumstances confronting them, without regard to their underlying
intent or motivation.” Id. See Cortez v. McCauley, 478 F.3d 1108, 1126 (10th Cir.
2007) (en banc) (“the excessive force inquiry evaluates the force used in a given
arrest or detention against the force reasonably necessary to effect a lawful arrest
or detention under the circumstances of the case.”).

9

Here, it is undisputed that the nature of the interaction between Mr. Lyons
and Deputy Johnson was that of an investigative detention. See Cortez, 478 F.3d at
1115 (describing types of police/citizen encounters).
An investigative detention is a seizure within the meaning of the
Fourth Amendment but, unlike an arrest, it need not be supported by
probable cause. An officer can stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity may be afoot, even
if the officer lacks probable cause. For an officer to have reasonable
suspicion to seize an individual, the officer must have a particularized
and objective basis for suspecting the particular person stopped of
criminal activity.
Id. (internal citations and quotation marks omitted).

The Tenth Circuit has

“recognized that, given evidence of officer safety concerns, officers may in
appropriate circumstances take steps to protect their personal safety and maintain
the status quo” during an investigative stop.” Id. at 1130 (citing Gallegos v. City of
Colorado Springs, 114 F.3d 1024, 1030-31 (10th Cir.1997); United States v.
Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)). Although investigative stops are
normally non-intrusive, the Tenth Circuit has “indicated that law enforcement may
(1) display some force, (2) place suspects on the ground, (3) use handcuffs, or (4)
detain suspects in law enforcement vehicles, even in the absence of probable
cause.” Id. (citing Perdue, 8 F.3d at 1463).

10

Moreover, the Tenth Circuit has held that use of an arm-bar take-down
maneuver on a suspect during an investigative stop was not unreasonable as a
matter of law when the officer reasonably believed her safety was in danger.
Gallegos, 114 F.3d at 1031. At the same time, officers involved in an investigative
stop are “permitted to use only as much force as [is] necessary to secure their own
safety and maintain the status quo.” Cortez, 478 F.3d at 1131 (citing United States
v. Hensley, 469 U.S. 221, 235 (1985)).
Here, Plaintiff alleges Mr. Lyons was subjected to excessive force when
Deputy Johnson used an arm-bar take-down maneuver, which caused Mr. Lyons to
hit his head on the ground. Deputy Johnson argues summary judgment on the
issue of excessive force is appropriate because, under the circumstances she was
faced with on July 29, 2016, it was reasonable for her to use an arm-bar technique
to take Mr. Lyons to the ground in order to secure him. Specifically, Deputy
Johnson argues her actions were objectively reasonable, because she arrived on the
property pursuant to a search warrant, in order to search for evidence of illegal
activity.5 When officers spotted Mr. Lyons outside the shop building, several

5

In her Response, Plaintiff disputes the validity of the search warrant, asserting that the
Defendants were unable to produce a legitimate basis to support the probable cause affidavit.
(See Doc. No. 74, at 1). However, Plaintiff has not produced any evidence to support this
assertion, and the search warrants are facially valid, having been issued by a District Court

11

officers shouted that they were law enforcement and that they had a search
warrant. Deputy Johnson shouted at Mr. Lyons to get on the ground, but Mr.
Lyons failed to do so. Deputy Johnson was unable to see one of Mr. Lyons’ hands.
Deputy Johnson needed to ensure her own and other officers’ safety by securing
Mr. Lyons, who may have been involved in illegal activity on the property and
who may have been armed. Accordingly, Deputy Johnson argues she used a
reasonable amount of force necessary to get Mr. Lyons on the ground and handcuff
him as part of an investigative detention.
In support, Deputy Johnson relies on an unpublished Tenth Circuit opinion,
Chidester v. Utah County, 268 F. App’x 718 (10th Cir. 2008). In Chidester, a
SWAT Team was in the process of executing a search warrant on a house, in
search of methamphetamine and weapons, among other items. Id. at 721. The
plaintiff, who lived next door to the target residence, ran outside to investigate
noise from the flash-bang grenades the officers deployed. Id. at 722. As the
plaintiff turned to go back inside, one of the officers spotted the plaintiff and ran
towards him, shouting at the plaintiff to put his hands in the air and to get on the
ground. Id. at 723. The plaintiff put his hands in the air but found it difficult to get

Judge. (See Dkt. 66-5 (Search Warrants)). In any event, Plaintiff’s assertion regarding probable
cause to search the ranch property is irrelevant to the sole claim of excessive force, as the
Amended Complaint makes no allegation challenging the validity of the search warrants.

12

on the ground while keeping his hands in the air. Id. The plaintiff repeatedly
shouted, “I’m not resisting, I’m not resisting.” Id. The officer then tackled the
plaintiff, knocking the wind out of him and putting his face in the rocks and dirt.
Id.
The Tenth Circuit in Chidester recognized that, viewed objectively, the
officer had to make a split-second decision in a high-stress situation in which he
was confronted with an unknown person, who may have been coming from or
going to the suspect house, and who may have been armed. Id. at 727. On the
other hand, the court noted that the police were aware of the plaintiff’s residence
before the raid and the plaintiff was standing on the other side of his residence
from the target residence. Further, the plaintiff “did not resist arrest or attempt to
flee, put his hands in the air when ordered to by [the officer], and kept them in the
air the entire time while yelling that he wasn’t resisting.” Id. “Although the
situation was threatening, [the officer] was armed with an automatic weapon and,
according to [the plaintiff’s] version of the facts, faced with a compliant suspect
whose hands were above his head. Under these facts, engaging [the plaintiff] in
such a physical manner was not reasonable.” Id. The court further noted that the
facts presented “an exceedingly close case.” Id. at 727.

13

In this case, as in Chidester, Deputy Johnson arrived at the ranch property as
part of a law enforcement team executing search warrants to search for evidence of
controlled dangerous substances. (Dkt. 66-5 (Search Warrants); LCSO Incident
Report, at 26-27). When Deputy Johnson spotted Mr. Lyons, she did not know
who Mr. Lyons was or whether he was armed, and she could not see one of his
hands. (Johnson Deposition I, 53:6-54:2). Deputy Johnson and the other officers
identified themselves as law enforcement with a search warrant. Deputy Johnson
yelled at Mr. Lyons to get on the ground, but Mr. Lyons did not comply. Under
those circumstances, as in Chidester, the Court concludes a reasonable officer
would find the situation threatening and would reasonably perceive Mr. Lyons as a
potential threat to her safety.

Accordingly, it would be reasonable in those

circumstances, to secure Mr. Lyons in a physical manner.

Deputy Johnson

performed an arm-bar take-down maneuver on Mr. Lyons to take him to the
ground. Under the circumstances presented, viewed in a light most favorable to
Plaintiff, use of the maneuver was reasonable as a matter of law.
While the court in Chidester ultimately concluded the officer’s use of force
was not reasonable, the Court here finds that the situation is not so exceedingly
close. In Chidester, the court concluded the officer was faced with a compliant
suspect. Here, by contrast, Mr. Lyons was not compliant with Deputy Johnson’s
14

order to get on the ground. Importantly for purposes of summary judgment, Mr.
Lyons presents no evidence to contradict Deputy Johnson’s testimony that she
ordered him to get on the ground. Rather, he testified in his deposition that he did
not hear the orders. (See Lyons Deposition I, 44:21-24 (“Q. Now do you know for
a fact that Ms. Johnson, or no other officer told you to stop, or get on the ground,
or you’re just saying you didn’t hear them? A. I didn’t hear. Didn’t have time to
do it.”); id. at 45:23-25 (“Q. [Deputy Johnson] didn’t say anything or you didn’t
hear her say anything? A. I didn’t hear her say a word.”)). In the excessive force
analysis, the Court is obliged to consider the perspective of a reasonable officer,
not that of the suspect. Under these circumstances, Deputy Johnson’s take-down
of Mr. Lyons was an objectively reasonable use of force and no constitutional
violation occurred. Although a genuine issue of fact remains as to whether Mr.
Lyons turned and began to walk away from Deputy Johnson (see Dkt. 78, at 4), the
Court concludes this issue is irrelevant to a determination regarding excessive
force, because the uncontroverted evidence demonstrates Mr. Lyons did not
comply with Johnson’s commands to get on the ground.
In her Response, Plaintiff compares the facts of this case to those presented
in Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012). In Morris, the Tenth Circuit
affirmed the denial of summary judgment on an excessive force claim. Id. at 119515

96. The police in Morris responded to a domestic disturbance at a residence. Id. at
1189. William Morris arrived at the scene after several police officers had secured
it, and he spoke with other individuals outside the residence. Id. at 1190. When
one of the individuals approached him, Morris put up his hands and backed toward
the police officers, who then lunged at Morris and threw him forcefully to the
ground. Id.
In that instance, the court reviewed the three Graham factors—the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight—and found two of the three factors favored Morris. First,
the court assumed that the officer had probable cause to arrest Morris for
misdemeanor assault, which weighed in the officer’s favor. Id. at 1195. Second,
Morris backed into the officers with his hands raised, thereby posing “little
immediate threat to the safety of the officers” or bystanders, and none of the
officers gave Morris any warning or told him to calm down, which weighed
heavily in Morris’ favor. Id. at 1196. Third, Morris was not resisting arrest or
attempting to flee, because he was backing toward the officers when they grabbed
him and was not struggling with the officers as they took him to the ground. Id.

16

Based on these factors, the Tenth Circuit found the officers had violated Morris’
constitutional right to be free from excessive force.
Plaintiff argues that this case is even more compelling than Morris, because
here all of the Graham factors support a finding of an excessive force violation.
That is, Mr. Lyons was not suspected of committing any crime, he did not pose a
threat to anyone, and he was not actively attempting to evade arrest or flee the
scene.

To the contrary, the Court finds the three factors weigh in Deputy

Johnson’s favor. First, even though Mr. Lyons was himself not suspected of
committing a crime, law enforcement was at the ranch property to execute search
warrants for evidence of possession of illicit drugs, which may be serious crimes.
Plaintiff does not attempt to argue that Deputy Johnson had no authority to carry
out an investigative detention of Mr. Lyons under those circumstances. Cf. Davis
v. Clifford, 825 F.3d 1131, 1135 (10th Cir. 2016) (“Although ‘an officer can effect
an arrest for even a minor infraction, [a] minor offense—at most—support[s] the
use of minimal force.’”) (quoting Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir.
2016)).
Second, as discussed above, in the high-stress situation of executing a search
warrant, a reasonable officer would perceive Mr. Lyons as an immediate threat,
particularly when that officer could not see one of Mr. Lyons’ hands. Third, the
17

uncontroverted evidence indicates Mr. Lyons was not compliant with Deputy
Johnson’s orders to get on the ground. See Fisher v. City of Las Cruces, 584 F.3d
888, 896 (10th Cir. 2009) (holding the failure to comply with officer’s lawful
orders to get on the ground can be seen as a “form of resisting arrest.”). Plaintiff
offers no evidence that Mr. Lyons was compliant in any way or attempting to
comply with Deputy Johnson’s orders, and no reasonable juror could find that he
was compliant with Deputy Johnson’s orders. Accordingly, all three Graham
factors weigh in Deputy Johnson’s favor. Under these circumstances, an arm-bar
take-down of a non-compliant individual was not disproportionate to the resistance
encountered. For the reasons explained above, this case is unlike Morris, and
therefore Morris does not govern the issue of excessive force in this case.
Finally, Plaintiff’s testimony that he did not hear Deputy Johnson’s orders
and that he did not turn away from Deputy Johnson, taken as true, is insufficient to
create a justiciable question of fact as to whether Deputy Johnson used excessive
force against Mr. Lyons. Plaintiff presents no evidence from which a jury could
conclude that Deputy Johnson did not order Mr. Lyons to get on the ground or that
Mr. Lyons was compliant with that order. Accordingly, no reasonable juror could
find that Deputy Johnson’s use of force was excessive. Accordingly, summary
judgment is appropriate on this issue.
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III.

Qualified Immunity
Deputy Johnson also contends she is entitled to qualified immunity from

personal liability for the § 1983 excessive force claim alleged against her in this
case. “The doctrine of qualified immunity shields government officials performing
discretionary functions from liability for damages ‘insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Boles v. Neet, 486 F.3d 1177, 1180 (10th
Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Accordingly, in a § 1983 action in which the affirmative defense of qualified
immunity from liability is at issue, the plaintiff bears the burden to show (1) the
defendant’s conduct violated his constitutional rights, and (2) those rights were
clearly established at the time of the defendant’s alleged misconduct. Mick v.
Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996).
As explained above, Plaintiff has failed to demonstrate Deputy Johnson’s
conduct violated Mr. Lyon’s Fourth Amendment rights governing excessive force
claims by using an arm-bar technique to take Mr. Lyons to the ground. Plaintiff’s
failure to satisfy the first prong of the qualified immunity analysis renders it
unnecessary for the Court to consider whether Plaintiff satisfied his burden under

19

the second prong. See Hinton v. City of Elwood, 997 F.2d 774, 780 (10th Cir.
1993).
IV.

Defendant Board
The Board argues it is entitled to summary judgment as to Plaintiff’s state

law negligence claim premised on the alleged use of excessive force by Deputy
Johnson against Mr. Lyons.

The Board correctly argues Oklahoma law is

analogous to the standard used in federal excessive force claims—one of
“objective reasonableness” under the circumstances.

See Morales v. City of

Oklahoma City ex rel. Oklahoma City Police Dep’t, 230 P.3d 869, 880 (Okla.
2010). The Oklahoma Supreme Court in Morales addressed a negligence claim
such as Plaintiff’s and held, “A police officer’s duty is very specific: 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.
Applying this standard, the Court concludes as a matter of law that Deputy
Johnson’s use of force against Mr. Lyons was objectively reasonable, for the
reasons explained above with respect to Plaintiff’s § 1983 claim. The maneuver
used to secure Mr. Lyons is one approved and taught by the Oklahoma Council on
Law Enforcement Education and Training (“CLEET”). (See Johnson Deposition I,
20

84:9-85:24). Deputy Johnson’s use of this technique on Mr. Lyons after he failed
to comply with her orders, whether he heard them or not, was objectively
reasonable under the circumstances Deputy Johnson faced.

Deputy Johnson

testified at deposition that she performed the arm-bar maneuver as she had been
trained by CLEET, and Plaintiff presents no evidence to contradict this testimony.
Accordingly, the Board is entitled to summary judgment on Plaintiff’s state law
negligence claim with respect to Deputy Johnson’s actions.
CONCLUSION
For the reasons outlined above, Defendants’ Motion for Summary Judgment
(Doc. No. 66) is GRANTED.
IT IS SO ORDERED this 16th day of November, 2017.

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