Parker v. City of Tulsa, The

Filing 104

OPINION AND ORDER by Judge Claire V Eagan that the motion for summary judgment by the City of Tulsa 88 is granted ; finding as moot 47 Motion in Limine; finding as moot 50 Motion in Limine; finding as moot 51 Motion in Limine; fi nding as moot 57 Motion in Limine; finding as moot 61 Motion in Limine; granting 88 Motion for Summary Judgment; finding as moot 97 Motion in Limine; finding as moot 98 Motion to Strike; finding as moot 103 Motion in Limine (Re: 2 Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

MATTHEW RICHARD PARKER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
THE CITY OF TULSA,

Defendant.

Case No. 16-CV-0134-CVE-TLW

OPINION AND ORDER
Now before the Court is Defendant City of Tulsa’s Motion for Summary Judgment and Brief
in Support (Dkt. # 88). Plaintiff alleges that defendant violated his Fourteenth Amendment right to
due process in violation of 42 U.S.C. § 1983. Defendant asks the Court to grant summary judgment
in its favor, arguing that plaintiff has failed to show that his constitutional rights were violated, and,
even if plaintiff suffered a constitutional deprivation, that plaintiff has failed to show it was pursuant
to a custom or policy of defendant. Plaintiff responds that he has presented evidence sufficient to
sustain his § 1983 claim. Dkt. # 94, at 27-33.
I.
On March 6, 1997, plaintiff was convicted in the District Court of Tulsa County, Oklahoma
of sexually abusing K.S., a minor child. On March 21, 2014, the Court of Criminal Appeals of the
State of Oklahoma reversed plaintiff’s conviction due to ineffective assistance of trial counsel. Dkt.
# 88-22, at 9-10. Plaintiff subsequently brought this suit under § 1983, alleging that the Tulsa Police
Department (TPD), a department of defendant, violated his Fourteenth Amendment right to due
process by conducting a “results oriented investigation” that failed to investigate leads that would

have resulted in exculpatory evidence. Dkt. # 2, at 7. Defendant now moves for summary judgment,
arguing that plaintiff has not presented evidence that his constitutional rights were violated pursuant
to a custom or policy of defendant. Dkt. # 88, at 24.
II.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate where
there is no genuine dispute as to any material fact and the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain
language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof at
trial. Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a
disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which
are designed ‘to secure the just, speedy, and inexpensive determination of every action.’” Id. at 327
(quoting Fed. R. Civ. P. 1).
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the [trier of fact] could reasonably
find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court is “whether

2

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that the party must prevail as a matter of law.” Id. at 251-52. In its review, the Court
construes the record in the light most favorable to the party opposing summary judgment. Garratt
v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
III.
Section 1983 provides a claim for relief against state actors for violation of a plaintiff’s
federal rights. Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007). To state a claim under § 1983,
a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of
the United States was violated and (2) that the alleged violation was committed by a person acting
under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Anderson v. Suiters, 499 F.3d
1228, 1232-33 (10th Cir. 2007). When the defendant is a municipal entity, the “under color of state
law” element requires that the constitutional deprivation occurred pursuant to official policy or
custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Defendant argues that it is
entitled to summary judgment because plaintiff has failed to establish either a constitutional
violation or a custom or policy that caused the constitutional violation. The Court need not address
whether plaintiff suffered a constitutional deprivation because plaintiff has failed to establish a
custom or policy. Thus, for the purpose of this decision, the Court will assume that TPD’s
investigation violated plaintiff’s constitutional right to due process.
“A challenged practice may be deemed an official policy or custom for § 1983 municipalliability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final
decision by a municipal policymaker, or deliberately indifferent training or supervision.” Schneider
v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013). Plaintiff alleges that

3

defendant had a well-settled custom of ignoring exculpatory evidence and that defendant failed to
train and/or supervise its officers. Dkt. # 94, at 31. The Court will address each allegation in turn.
A.
A widespread practice that is not officially authorized may constitute a custom if it is “so
permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,
167-68 (1970)). Plaintiff alleges that defendant had a pervasive, informal custom of “results oriented
investigations” that ignored exculpatory evidence. Dkt. # 94, at 31. To support his claim, plaintiff
relies on the deposition testimony of Rex Berry, the TPD officer who investigated his case. Berry
testified that he did not follow up on several lines of investigation that could have lead to
exculpatory evidence. Dkt. # 94-6, at 38-39, 56, 63. Berry also stated that he conducted the
investigation pursuant to TPD’s policies and procedures, and that no supervisor ever objected to
Berry’s conduct in this investigation. Id. at 7-10.
In Bryson v. City of Okla. City, 627 F.3d 784 (10th Cir. 2010), the Tenth Circuit addressed
issues of municipal liability similar to those in this case. Bryson was convicted of a rape and
kidnapping based in part on the testimony of a forensic chemist employed by the Oklahoma City
Police Department who testified that DNA evidence found at the scene of the crime implicated
Bryson. Id. at 787. Later testing found that the forensic chemist’s lab results indicated that the DNA
found at the scene could not have come from Bryson. Id. Bryson filed a § 1983 action against the
city and the forensic chemist, and the district court granted the city’s motion for summary judgment,
finding that the undisputed evidence did not support a finding of municipal liability. Id. Bryson
argued, inter alia, that the city had a custom of encouraging forensic chemists to manipulate

4

evidence in order to obtain convictions. Id. at 790. To support his claim, Bryson cited to the
testimony of a former Oklahoma City police chief that “forensic chemists, like everybody who is
on the prosecution team, [will] testif[y] in a way that is the most incriminating.” Id. (alterations in
original). Bryson also cited to the statement of another forensic chemist who criticized the testimony
of the chemist involved in Bryson’s case and asserted that her behavior “persists and is condoned
by much of the criminal justice system in Oklahoma County.” Id. The Tenth Circuit affirmed,
finding that the statements were not “sufficient to give rise to an inference of a widespread City
practice of fabricating results and concealing evidence that was ‘so permanent and well settled as
to constitute a custom or usage with the force of law.’” Id. at 791 (quoting Praprotnik, 485 U.S. at
127).
Here, plaintiff has presented even less evidence of a custom than the plaintiff in Bryson.
Plaintiff relies entirely on the statements of Berry that he was following TPD’s policies and
procedures in this investigation and that no supervisor reprimanded him over this case. In Bryson,
the Tenth Circuit explained that the other chemist’s statement about the false testimony being
condoned by the rest of the criminal justice system did not establish a custom because the statement
referred to only that forensic chemist and did not suggest that other chemists were giving similarly
inaccurate testimony. Id. Thus, under Bryson, a clear pattern of behavior of one employee is not
enough to establish a custom. Here, at most the evidence shows that TPD condoned Berry’s failure
to investigate exculpatory evidence in this case. Berry’s testimony does not even establish a custom
within his own investigations, let alone a widespread practice across TPD that could constitute a
well settled custom with the force of law. Thus, viewing the evidence in the light most favorable to

5

plaintiff, plaintiff has failed to present evidence giving rise to an inference of a custom of ignoring
exculpatory evidence sufficient to establish municipal liability.
B.
A city’s failure to train or failure to supervise its employees constitutes an official policy or
custom when it “amounts to deliberate indifference to the rights of persons with whom the
[employees] come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). The Tenth
Circuit has described the requirement of deliberate indifference as follows:
The deliberate indifference standard may be satisfied when the municipality has
actual or constructive notice that its action or failure to act is substantially certain to
result in a constitutional violation, and it consciously or deliberately chooses to
disregard the risk of harm. In most instances, notice can be established by proving
the existence of a pattern of tortious conduct. In a narrow range of circumstances,
however, deliberate indifference may be found absent a pattern of unconstitutional
behavior if a violation of federal rights is a highly predictable or plainly obvious
consequence of a municipality’s action or inaction, such as when a municipality fails
to train an employee in specific skills needed to handle recurring situations, thus
presenting an obvious potential for constitutional violations.
Bryson, 627 F.3d at 789 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998)).
To support his failure to train/supervise claim, plaintiff relies on the expert report of Michael Lyman,
Ph. D.1 Dr. Lyman asserts that “[t]he investigative missteps and oversights [in plaintiff’s criminal

1

Defendant has filed a motion in limine (Dkt. # 103), which asks the Court, inter alia, to
preclude Dr. Lyman from testifying about certain medical opinions asserted his report. Dkt.
# 103, at 17-18. The Court need not address defendant’s motion at this time because Dr.
Lyman’s medical opinions are irrelevant to the issue of municipal liability, and, therefore,
have no impact on this decision. Additionally, in its reply brief, defendant asks the Court to
not consider any of Dr. Lyman’s report in deciding its motion for summary judgment
because it is inadmissible hearsay. Dkt. # 96, at 4-5. “Under Rule 56(e), the court may
exclude consideration of unsworn expert reports.” Hildebrand v. Sunbeam Prods., Inc., 396
F. Supp. 2d 1241, 1250 (D. Kan. 2005). For the purpose of this decision, the Court will
consider Dr. Lyman’s report. However, as discussed below, even with the consideration of
Dr. Lyman’s report, plaintiff has failed to present sufficient evidence to support municipal
liability on plaintiff’s failure to train and/or supervise claim.
6

case] should have been detected by proper supervisory oversight. Nowhere in the case record is there
any indication that [Berry’s] investigative progress was being monitored by any supervisor within
[TPD].” Dkt. # 94-14, at 19. Dr. Lyman also asserts that a failure to train is evidenced by TPD’s lack
of a written policy providing guidelines for detectives in child abuse investigations. According to
Dr. Lyman, a proper policy would include:
(1) a requirement to video tape every interview with child victims [and the creation
of a written transcript] and that multiple interviews of the same child victim should
be avoided; (2) requirements that questions asked of children victims be structured
with open ended questions that do not suggest the answer to the question; (3)
requirements that investigators investigate and document any and all evidence of an
exculpatory nature that might discredit or otherwise refute allegations made by the
victim [including evidence of prior false or unfounded allegations of sexual abuse];
and (4) requirements that every step of an investigation of child abuse allegations are
involved, supervisory oversight take place to oversee that investigative steps are
being properly followed . . . .
Id. at 19-20 (brackets in original).
Plaintiff has presented no evidence to show a pattern of tortious conduct. Thus, plaintiff must
show that the need for more or different training and/or supervision was so obvious that a violation
of his constitutional right to due process was likely to result from not providing it. See Schneider,
717 F.3d at 773-74. At the time of the investigation, Berry had been a police officer for over twenty
years and the second in command of the Child Crisis Unit for over a decade. Dkt. # 94-6, at 5-6.
Berry supervised other investigations in the unit and had investigated over one thousand child abuse
cases by the time he conducted the investigation that led to plaintiff’s arrest and prosecution. Id. at
5; Dkt. # 88-5, at 1. Berry’s uncontroverted testimony is that he trained with a detective experienced
in child abuse cases when he first joined the unit and that TPD sent him to several training seminars
in investigating child abuse cases. Dkt. # 94-6, at 90-91.

7

Dr. Lyman’s report asserts that “[t]he importance of proper supervisory oversight cannot be
overstated,” but it does not explain what “proper supervision” would have involved. Dr. Lyman’s
report gives no reason why it would be obvious to TPD that additional oversight of a veteran
detective in the Child Crisis Unit would be obviously necessary to prevent the detective from failing
to investigate exculpatory evidence. Given Berry’s extensive experience and training in investigating
child abuse cases, the need for a supervisor to check on Berry’s investigation to prevent him from
failing to investigate exculpatory evidence was not highly predictable or plainly obvious. Cf.
Bryson, 627 F.3d at 789 (“We are not persuaded, however, that it was highly predictable or plainly
obvious that a forensic chemist would decide to falsify test reports and conceal evidence if she
received only nine months of on-the-job training and was not supervised by an individual with a
background in forensic science.”).
Moreover, although Dr. Lyman sets out the details of what he believes would be a better
policy regarding child abuse investigations, he gives no reason to think it would be highly
predictable or plainly obvious that not having these policies in place would lead to detectives failing
to investigate exculpatory evidence. Plaintiff does not present any evidence that specific, written
child abuse investigation policies were ubiquitous in police departments at the time. Cf. id.
(“[A]lthough the record reflects that most forensic laboratories began adopting better training and
management practices in the 1970s and early 1980s, such practices were by no means universal in
1983, further militating against the conclusion that it was highly predicable or plainly obvious in
1983 that the training and supervision practices employed by the City and other jurisdictions would
result in the violation of federal rights.”). And considering that failure to investigate exculpatory
evidence is not a problem specific to child abuse cases, it is unclear why a specific policy on

8

investigating exculpatory evidence for this type of case would be obvious. Given the undisputed
evidence of Berry’s training on the job and at specific child abuse investigation seminars, and
plaintiff’s failure to show that a written policy on child abuse investigations was obviously necessary
at the time to prevent officers from ignoring exculpatory evidence, the Court finds that plaintiff has
failed to show deliberate indifference. Because plaintiff has not presented sufficient evidence to
support a finding of a custom or policy that caused his constitutional deprivation, defendant’s motion
for summary judgment will be granted.
IT IS THEREFORE ORDERED that Defendant City of Tulsa’s Motion for Summary
Judgment and Brief in Support (Dkt. # 88) is granted. A separate judgment is entered herewith.
IT IS FURTHER ORDERED that plaintiff’s motions in limine (Dkt. ## 47, 50, 51, 97, 98)
and defendant’s motions in limine (Dkt. ## 57, 61, 103) are moot.
DATED this 18th day of April, 2017.

9