Elix v. Snyder et al

Filing 125

AMENDED ORDER ADOPTING 115 REPORT AND RECOMMENDATION; granting 124 MOTION to Correct or Modify Order Adopting Report and Recommendation of Defendants Snyder and Dellinger.. Signed by Honorable Robin J. Cauthron on 9/30/11. (lg, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL ELIX,
Plaintiff,
vs.
SGT. TOM SNYDER, OKC PD
Badge No. 1179, in his individual and
official capacities;
SGT. CLINT DELLINGER OKC PD
Badge No. 1310, in his individual and
official capacities, and
CITY OF OKLAHOMA CITY,
Defendants.

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No. CIV-09-170-C

AMENDED ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff brought the present action pursuant to 42 U.S.C. § 1983 suing the two
Defendant officers alleging excessive use of force. On May 31, 2008, Defendant officers
responded to a radio call of a drive-by shooting. While Defendants were pursuing his
vehicle, Plaintiff jumped out of the car and began running away. Plaintiff asserts that at the
time he got out of his car he dropped his gun. Defendants argue that Plaintiff pointed the
weapon at them. The parties are in agreement that Defendant Snyder struck Plaintiff with
the patrol car. After a short foot chase, the Plaintiff was caught by Officer Dellinger.
Plaintiff was handcuffed and force was used in that process. Defendant Snyder did not
participate in the handcuffing. Arguing that the officers’ conduct that night violated his
constitutional rights, Plaintiff filed the present action.

The matter was referred to Magistrate Judge Robert E. Bacharach in accordance with
28 U.S.C. § 636(b)(1)(B). Defendants filed a Motion for Summary Judgment seeking
dismissal based on qualified immunity. In a thorough and well-reasoned Report and
Recommendation (“R&R”), Judge Bacharach recommended the Court deny summary
judgment on the deadly force claims, deny the excessive force claim against Officer
Dellinger, and grant Officer Snyder summary judgment on the excessive force claim.
Defendants filed a timely objection to the R&R arguing that Judge Bacharach ignored
controlling Tenth Circuit law and refused to properly evaluate testimony by Plaintiff
regarding when he dropped his gun. According to Defendants, when that testimony is
properly considered it is clear that the officers were within their rights to use deadly force.
After review of the parties’ briefs and the underlying materials, the Court finds Defendants’
arguments are not well supported. While it may be said that Plaintiff has testified
inconsistently, to accept only the portions of the testimony supported by Defendants would
require the Court to weigh the value of Plaintiff’s testimony and accord credibility to only
a portion of it. Neither action is proper at this stage of the proceedings. Further, Defendants’
reliance on Plaintiff’s no contest plea is misplaced and Judge Bacharach’s analysis of that
portion of the claim does not ignore controlling law. As Judge Bacharach noted, Plaintiff’s
actions and statements in the criminal case in this matter do not establish the factual predicate
that he in fact pointed the gun at the officers in such a manner as to require their reaction with
deadly force. As for Defendants’ arguments that the R&R ignores controlling Tenth Circuit
precedent, that argument holds weight only if the Court also balances Plaintiff’s testimony
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and discredits part of it. As noted above, that process is forbidden at this stage. The R&R
correctly sets forth the existence of controlling law and establishes at a minimum a factual
dispute as to whether or not Defendants violated Plaintiff’s constitutional rights as set forth
in that controlling law. Accordingly, the R&R correctly determines that Defendants are not
entitled to qualified immunity.
While the Objection to the R&R was pending, Plaintiff decided not to pursue a deadly
force claim against Defendant Dellinger. Accordingly that claim will be deemed dismissed.
For the reasons set forth herein, the Court adopts in full the Report and
Recommendation on the summary judgment motion by Sgts. Snyder and Dellinger (Dkt. No.
115). Plaintiff’s claims for use of deadly force in regard to being struck by the car against
Defendant Snyder and the excessive force following his handcuffing by Officer Dellinger
shall survive. Defendant Snyder is entitled to judgment on the excessive force claim. A
separate judgment will issue at the close of these proceedings.
IT IS SO ORDERED this 30th day of September, 2011.

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