Jones v. Whittington et al

Filing 115

ORDER granting in part and denying in part defendants' motion to stay 106 as to specific claims...proceedings as to those claims in this court are stayed pending resolution of the state proceeding or further order of the court; the stay motion is denied as to plaintiff's excess force claim which shall go forward pursuant to the existing scheduling order...defendant Whittington's summary judgment motion 93 is denied as to the excess force claim only and stricken as to all other claims...see order for further specifics. Signed by Honorable Joe Heaton on 08/21/2013. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RON E. JONES,
Plaintiff,
vs.
SHERIFF BOBBY WHITTINGTON,
ET AL.,
Defendants.

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NO. CIV-11-0861-HE

ORDER
In this case, plaintiff Ron Jones seeks damages for alleged constitutional violations
stemming from his February 2010 arrest and prosecution for animal cruelty and related
charges. He originally asserted claims against multiple defendants. Those against District
Attorney Wampler and Horse Feathers Equine Rescue Inc. have been resolved either by
order of the court or by stipulated dismissal. Plaintiff’s claims against Bobby Whittington,
the sheriff of Tillman County, remain for resolution.

Whittington is sued in both his

individual capacity and his official capacity as Tillman County Sheriff, the latter claim being
essentially a suit against Tillman County. He asserts claims under 42 U.S.C. § 1983 for false
arrest, excessive force, deprivation of due process, and vindictive prosecution.
Background
The background facts and circumstances are largely undisputed. On February 13,
2010, the Tillman County Sheriff’s Department received a complaint that horses on
plaintiff’s property were not being cared for properly. Sheriff Whittington assigned Deputy
Keith Hefner to investigate. Between February 13th and February 27th, Hefner visited

plaintiff’s property on numerous occasions and admonished plaintiff to improve the animals’
living conditions. Ultimately, Deputy Hefner sought a search and seizure warrant for the
horses. A state judge issued the warrant on February 27, 2010, finding probable cause to
believe the crime “Cruelty to Animals,” 21 Okla. Stat. § 1685, had been committed.
On February 27, 2010, defendant accompanied Hefner to assist in the execution of the
warrant and determined that he had probable cause at that time to arrest plaintiff for cruelty
to animals. The circumstances of the arrest are disputed. Defendant contends the arrest was
unremarkable and accomplished with a minimal amount of force. Plaintiff’s testimony is that
the sheriff violently slammed him into the side of his car, even though he was never told he
was under arrest, “torqued” his arm in an extreme fashion causing injury, and handcuffed
him so tightly that it was difficult to eventually get the cuffs off.
Plaintiff was charged with four felony counts of cruelty to animals, one misdemeanor
count of failing to notify police of a concealed weapon by a licensee, and one misdemeanor
count of obstructing an officer. The State also filed a motion for hearing on the forfeiture of
the horses and setting a security bond for their care.
Following what the defendant asserts was a plea agreement with the State, both cases
were dismissed. Some time after this case was filed, both the criminal and civil state cases
were re-filed. The criminal case has since been dismissed by the state court on Double
Jeopardy grounds. The civil forfeiture case is still pending.
Discussion
Defendant Whittington has moved both for summary judgment and to stay further
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proceedings in this court pending resolution of the state court proceedings. The latter motion
seeks to invoke the abstention doctrine recognized in Younger v. Harris, 401 U.S. 37 (1971).
Because the Younger doctrine, where it applies, is jurisdictional in nature, it must be resolved
first. D.L. v. Unified School Dist. No. 497, 392 F.3d 1223, 1228-29 (10th Cir. 2004).
a. Motion to Stay
The Younger doctrine, where applicable, requires a federal court to abstain from
acting where a federal court judgment would interfere with an ongoing state proceeding.
The doctrine is said to apply where these conditions are met: (1) there are ongoing state
proceedings, (2) the state proceedings offer an adequate forum to hear the plaintiff’s federal
claims, and (3) the state proceedings implicate important state interests. Taylor v. Jaquez,
126 F.3d 1294, 1297 (10th Cir. 1997). The plaintiff’s federal court claims are evaluated
individually. See D.L. v. Unified School Dist. No. 497, 392 F.3d at 1229. Here, defendant
urges that all three conditions necessary to abstention are present and that the case should be
stayed. Plaintiff contends that none of the three are present.
Plaintiff argues the first element is not present because, at the time this suit was filed,
there was no state proceeding pending. That is true in a technical sense, but ignores the
substance of the somewhat extraordinary circumstances of this case. Here, both criminal and
civil proceedings had been commenced in state court against Mr. Jones (or, as to the civil
proceeding, his horses) prior to the filing of this case. However, as noted above, they were
dismissed, in the state’s view (and apparently that of the state court judge), on the basis of
an oral plea agreement reached with Mr. Jones. According to defendant, that agreement was
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to the effect that Mr. Jones would relinquish his interest in the horses involved and the state
would dismiss all charges/proceedings and not seek reimbursement for the cost of the horses’
care up to that point. In the state’s view, that agreement was breached when Mr. Jones filed
this federal lawsuit, premised in part on his continued ownership of the horses, causing the
state to re-file the state cases. Mr. Jones challenges the motivation for the re-filing of the
cases, but it is clear in any event that the originally filed and re-filed cases are, in substance,
the same case and dispute.
Even if the original and re-filed state proceedings were not substantially the same, the
court would not attach controlling significance to the sequence of the filings. While Younger
originally attached controlling significance to the timing of the respective case filings, the
Supreme Court has since retreated from that position. See 17B Charles Alan Wright, Arthur
R. Miller, Edward H. Cooper & Vikram David Amar, Federal Practice and Procedure §4253,
at 52-57 (3d ed. 2007). It now appears to view a later-filed state proceeding as “pending”
for purposes of the doctrine if it was filed before “any proceedings of substance on the
merits” had taken place in the federal court. Hicks v. Miranda, 422 U.S. 332, 349 (1975).
At the time the state civil forfeiture action was re-filed on October 4, 2011, there had been
no substantive proceedings in this federal action. Indeed, there has been little, if any,
attention given to the substantive merit of plaintiff’s claims as to these defendants.1

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The other defendants — District Attorney Wampler and Horse Feathers Equine Rescue Inc.
— filed motions to dismiss which were addressed by the court, but this motion is the first substantive
treatment of the claims against Sheriff Whittington or the county.

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In any event, the court concludes that the first condition necessary to application of
the Younger doctrine — the existence of an ongoing state proceeding — is present here due
to the pending civil forfeiture case.
The third element — that the state proceedings involve important state interests and
policies — is also met. The State of Oklahoma has an important interest in advancing the
interests protected by its criminal and other laws preventing abuse or neglect of animals.2
The more difficult question is whether the second condition is present here — the
requirement that the state court proceeding provide an adequate forum to hear the claims
raised in the federal complaint. Apparently as a part of this inquiry, the cases also evaluate
the potential interference with the state case from a decision in the federal case. See J.B. v.
Valdez, 186 F.3d 1280, 1291-92 (10th Cir. 1999).
As to at least some of the claims asserted here, there is a plausible basis for concluding
that they could have been raised in the state proceeding. It is true that defendant Whittington
is not a party in that case, but that is not dispositive as to the Younger analysis. There are
some circumstances in which legally distinct parties may be so closely related that they
should all be subject to the Younger considerations. Doran v. Salem Inn, Inc., 422 U.S. 922,
928 (1975). Where there is, in essence, only one claim involved, the legally distinct party
in the federal proceeding may be viewed as the alter ego of the party in the state proceeding.

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It appears the pending forfeiture proceeding, while civil, may be viewed as “in aid of”
criminal statutes addressing the same or similar conduct.

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D.L. v. Unified School Dist. No. 497, 392 F.3d at 1230.3 Here, the position of Whittington,
the sheriff, is somewhat akin to that. It is, at least in part, his actions that are at issue in the
state case. While the case was brought in the name of the state, he was the official who
effected the seizure of the horses.
Plaintiff has not negatived the possibility that he could have raised his claims in the
state case.4 The state district court is a court of general jurisdiction. While the civil
forfeiture proceeding involved here might be viewed as a sort of special proceeding, rather
than a “case” in the traditional sense, neither party has pointed to any authority suggesting
claims against the sheriff could not have been raised there or that state pleading or
substantive rules would necessarily prevent it.5
The court is also mindful that the state case has progressed to the point where a
hearing (arguably, the “trial”) has occurred and that the parties are awaiting a disposition by
the judge. That may preclude plaintiff now asserting claims there, though that is not clear.
However, the question is the potential availability of a state remedy. Moreover, the potential

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That suggestion of “alter ego” status is purely in the context of the Younger analysis. The
court does not suggest “alter ego” liability attaches for other purposes.
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“The pertinent issue is whether appellees' constitutional claims could have been raised in
the pending state proceedings.” Moore v. Sims, 442 U.S. 415, 425 (1979) (emphasis added); see
also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (“[W]hen a litigant has not attempted to
present his federal claims in related state-court proceedings, a federal court should assume the state
procedures will afford an adequate remedy, in the absence of unambiguous authority to the
contrary.”).
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There is little or no case law interpreting the Oklahoma statute, 21 Okla. Stat. 1680.4(C),
and the statute itself is ambiguous in various respects.

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for a decision by this court impacting the state determination, through principles of estoppel
or otherwise, appears to exist as to at least some of plaintiff’s claims. While not necessarily
the identical inquiry, a determination here that probable cause existed for the arrest of
plaintiff based on the condition of the horses at the time of arrest would perhaps control the
state court’s determination, based on collateral estoppel or similar principles. Even absent
a binding impact, the possibility of inconsistent determinations exists.
While the question is close,6 the court concludes the second Younger condition is also
met.7
Plaintiff seeks to invoke certain exceptions to the Younger doctrine. Courts are not
required to abstain or stay an action on Younger grounds in cases of proven harassment or
prosecutions undertaken in bad faith, and in other extraordinary circumstances. Weitzel v.
Div. of Occupational & Prof'l Licensing of Dep't of Commerce of State of Utah, 240 F.3d
871, 876 (10th Cir. 2001). Given the evidence as to the basis for re-filing as reflected in the
documents filed by prosecutors in both the criminal and civil state cases, the court is
unpersuaded that the exceptions are applicable here.
As noted above, the potential application of the Younger doctrine is analyzed on a

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If there is a case providing a clear path through the maze of factors impacting this
determination, the court has been unable to find it.
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The Court of Appeals has suggested that uncertainty as to this element may cut in favor of
abstention: “While we find plaintiffs were engaged in an ongoing state proceeding, we are less
certain about whether they could have adequately raised their federal statutory and constitutional
claims in these state proceedings. This uncertainty, however, militates in favor of abstention.” J.B.
v. Valdez, 186 F.3d at 1292 (emphasis added).

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claim by claim basis. The above rationale for abstention plainly does not apply to plaintiff’s
claim for excess force. That claim is based purely on plaintiff’s contention that Sheriff
Whittington used unreasonable force in arresting him on February 27, 2010. The legality of
the underlying arrest will not control the result as to the excess force claim. See Cortez v.
McCauley, 478 F.3d 1108, 1126-27 (10th Cir. 2007). Further, there is no apparent way in
which the resolution of the excess force claim by this court would interfere with, or impact
in any way, the determinations to be made in the pending state proceeding.
The question then becomes how to proceed in light of the determination that Younger
abstention is warranted as to some claims but not all. Where, as here, compensatory damages
are the relief sought in the federal action, application of Younger ordinarily results in a stay
of the federal proceedings, rather than their dismissal. D.L. v. Unified Sch. Dist. No. 497,
392 F.3d at 1228. So the next question is whether the entire case should be stayed, or only
part of it. Since the abstention rationale and doctrine do not apply to the excess force claim,
the excess force claim can potentially go forward.
Proceeding to trial on less than all of the claims effects a severance, causing, at least
potentially, multiple trials. Concerns of judicial economy and cost and convenience to the
parties militate against such a severance. But there are competing concerns here. This case
has been pending for two years. Based on counsels’ comments at the recent hearing, it may
be months before a decision is rendered in the state proceeding. Plaintiff has suggested that,
if he receives an adverse decision in the pending state proceeding, he will appeal it. An
appeal potentially results in extensive further delay, deferring even longer the point at which
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the stayed claims can move forward here. Further, while there is some overlap in the
evidence that might be offered on the various claims, at least as to background
circumstances, a jury’s inquiry in the excess force case will be largely different from that
with the other claims. In the circumstances existing here, on balance, there is no compelling
reason to defer resolution of the excess force claim.
The court concludes defendant’s motion to stay based on Younger should be granted
as to plaintiff’s false arrest, due process and vindictive prosecution claims, but denied as to
the excess force claim. Further proceedings in this case will be stayed as to the three
referenced claims, but will continue on the present schedule as to the excess force claim. The
party’s pretrial submissions required by the current scheduling order should be directed to
the excess force claim only.
(b) Motion for Summary Judgment
As noted above, defendant has also filed a motion for summary judgment which must
be addressed insofar as it relates to the unstayed excess force claim. As with the other
claims, they are asserted both against Whittington personally and against the county. The
standards applicable to summary judgment are familiar. Summary judgment is appropriate
only “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is ‘material’
if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute
over a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving party
on the evidence presented.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)
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(citation omitted). “Put differently, the question . . . is whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.
2013) (citations and internal quotation marks omitted). The facts and any reasonable
inferences that might be drawn from them must be viewed in the light most favorable to the
nonmoving party. See id.
Sheriff Whittington asserts he is entitled to judgment on the individual capacity
claims against him by reason of qualified immunity. Qualified immunity involves a “twostep sequence.” Pearson v. Callahan, 555 U.S. 223 (2009). “When a defendant asserts
qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1)
the defendant violated a constitutional right and (2) the constitutional right was clearly
established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). Plaintiff must satisfy
both steps to defeat qualified immunity.
The question of whether plaintiff can show a constitutional violation based on excess
force is governed by the Fourth Amendment’s “objective reasonableness” standard. Morris
v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012). 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. (quoting Graham v. Connor, 490 U.S.
386, 397 (1989)). In making that determination, courts consider and balance three factors:
“(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to
the safety of the officers or others, and (3) whether he is actively resisting arrest or
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attempting to flee.” Id. (citing Graham, 490 U.S. at 396).
Viewing the evidence in the light most favorable to plaintiff, as it must at this stage,
the court concludes plaintiff has shown a constitutional violation. Plaintiff’s testimony is that
when he arrived on his property on February 27, 2010, the sheriff told him he either had to
help him load the horses or leave. Plaintiff says he refused to help and turned to leave,
bending over to pick his cane up off the ground. Plaintiff’s testimony as to what happened
next is as follows:
On my arising, I was blind-sided when Bobby Whittington lunged at me,
grabbing my right arm, twisting it behind my back, driving me, pile-driving me
into the side of my PT Cruiser and kept torquing and torquing and torquing on
my arm, and I finally got to a point where I said “Stop. You’re hurting me.
You’re hurting me excruciatingly,” at which point, Bobby Whittington said
“Good. I’m glad. I wish I could hurt you worse.” [Doc. #98-25 at 283].
He went on to testify that he was slammed into his vehicle hard enough to “dent the metal
on [the] vehicle.” Id. at 286. He also testified that was “savagely” handcuffed, in that he was
cuffed by Whittington so tightly that a deputy later had difficulty removing the cuffs. Id. at
288. Plaintiff’s evidence is to the effect that he suffered permanent injuries to his shoulder
and neck due to the force used in the arrest. Defendant denies this version of the arrest but,
as noted above, the court is obliged to view the evidence in the light most favorable to
plaintiff in evaluating the Graham factors.
As to the first factor — the severity of the crime at issue — it is true that cruelty to
animals is a felony under Oklahoma law. However, it is also a non-violent felony, reducing
the severity of the crime to some extent and suggesting a lesser level of force might be

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reasonable in connection with an arrest for it. As to the second element, there appears to
have been no indication that plaintiff represented an immediate threat to the safety of the
officers or others.8 As to the third element — whether plaintiff was resisting arrest or
attempting to flee — plaintiff’s testimony is that he was not told he was under arrest and that
he was simply leaving — an option he says the sheriff gave him. See Casey v. City of Fed.
Heights, 509 F.3d 1278, 1282 (10th Cir. 2007) (an individual who was never told he was
under arrest was not actively resisting arrest).
Crediting plaintiff’s version of what occurred, he has shown a constitutional violation.
“The right to make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.” Lundstrom v. Romero, 616
F.3d 1108, 1126 (10th Cir. 2010) (quoting Graham, 490 U.S. at 396). However, under the
facts alleged by plaintiff, the amount of force used by the sheriff in twisting plaintiff’s arm
behind his back and “pile-driving” him into the side of his vehicle was not objectively
reasonable where plaintiff was accused of a non-violent crime, was not posing an immediate
threat to the officers, and was not resisting arrest. See Morris, 672 F.3d at 1195-96 (a
forceful takedown was not objectively reasonable where plaintiff was arrested for assault—a
misdemeanor under state law—did not pose a threat to officers, and was not resisting arrest,
as he was backing toward the officers when they grabbed him from behind).
The court also concludes that plaintiff has shown the constitutional right in question

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Plaintiff had a gun in his car, but there is no indication Whittington was aware of it at the
time the arrest was made.

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to have been clearly established at the time of the incident. “A constitutional right is clearly
established when, at the time of the alleged violation, the contours of the right were
sufficiently clear that a reasonable official would understand that his actions violate that
right.” Swanson v. Town of Mountain View, 577 F.3d 1196, 1200 (10th Cir. 2009) (citation
omitted). A “plaintiff must do more than identify in the abstract a clearly established right
and allege that the defendant violated it.” Id. (citation omitted). While a plaintiff need not
identify a case with the exact same factual circumstances, the plaintiff must show authority
making it “apparent that in the light of pre-existing law a reasonable official would have
known that the conduct in question violated the constitutional right at issue.” Id. (internal
quotation marks and ellipsis omitted).
Here, crediting plaintiff’s version of the disputed facts, a reasonable officer would
have known conduct like that alleged to have been committed by the sheriff was unjustified.
There were “no substantial grounds for a reasonable officer to believe there was legitimate
justification for acting as he did.” Lundstrom, 616 F.3d at 1127 (citing Buck v. City of
Albuquerque, 549 F.3d 1269, 1291 (10th Cir. 2008)); see also Morris, 672 F.3d at 1197-98
(holding that it was clearly established in light of Graham that the force used in an initial
takedown was excessive when “the first Graham factor only marginally supported using
force against [the plaintiff], and the second two factors weighed heavily against it”). Apart
from a passing reference to the issue in his brief, defendant makes no serious argument to the
contrary. Plaintiff’s right to be free from a forceful takedown under the circumstances
assumed here was clearly established under Graham.
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As plaintiff has sufficiently shown both a constitutional violation and that the law was
clearly established, defendant Whittington is not entitled to summary judgment in his
individual capacity.
As to the claim against Whittington in his official capacity — the claim against the
county — summary judgment must also be denied. Because the sheriff is the final
policymaker for the county as to its law enforcement activities, his actions essentially
become the actions of the county. See Moss v. Kopp, 559 F.3d 1155, 1168-69 (10th Cir.
2009) (“[A] municipality can be liable under § 1983 if the ‘final policymaker’ takes the
unconstitutional action.” (citation omitted)); Reid v. Hamby, 124 F.3d 217, at *5 (10th Cir.
1997) (unpublished) (“Oklahoma sheriffs are final policymakers concerning law enforcement
activities in their counties.” (citing Hollingsworth v. Hill, 110 F.3d 733, 743 (10th
Cir.1997)). As discussed above, a sufficient showing has been made that a constitutional
violation was committed.
Accordingly, defendant’s motion for summary judgment as to the excess force claim
must be denied as to both the individual and official capacity claims.
Conclusion
For the reasons stated, defendants’ motion to stay [Doc. #106] is GRANTED as to
plaintiff’s claims for false arrest, deprivation of due process, and vindictive prosecution.
Proceedings as to those claims in this court are STAYED pending resolution of the state
proceeding or further order of this court. The stay motion is DENIED as to plaintiff’s excess
force claim, which shall go forward pursuant to the existing scheduling order. Defendant
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Whittington’s summary judgment motion [Doc. #93] is DENIED as to the excess force claim
only and STRICKEN as to all other claims.
Finally, the court encourages both parties to devote their best efforts to exploring the
possibility of settlement at the August 23 settlement conference with Judge Erwin. As noted
above, this case has already gone on for a long time, at considerable expense and
inconvenience to the parties. The time to decision in the state proceeding is unknown, both
in terms of the trial judge’s determination and the time necessary for any appeal of that
determination. This case appears to be one in which all parties have a strong interest in an
early resolution, if agreement can be reached.
IT IS SO ORDERED.
Dated this 21st day of August, 2013.

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