Stout v. Long et al

Filing 134

MEMORANDUM OPINION AND ORDER granting 100 Defendant United States' Motion to Dismiss; United States of America terminated.. Signed by Honorable William P Johnson on 8/2/16. (lg)

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

THERESA STOUT, as personal representative of the
Estate of Christopher Stout,
Plaintiff,
v.

Case No. 14-cv-427-WPJ

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING
UNITED STATES’ MOTION TO DISMISS
THIS MATTER comes before the Court upon Defendant United States’ Motion to
Dismiss (Doc. 100), filed October 29, 2015. Having reviewed the parties’ briefs and applicable
law, the Court finds that Defendant’s motion is well-taken and therefore GRANTED as herein
described.
FACTUAL BACKGROUND
Given the filings to date, the Court assumes the reader’s familiarity with the factual
allegations underlying this action. However, the Court highlights relevant procedural
developments. The United States filed a Motion to Dismiss (Doc. 100) on October 29, 2015.
Plaintiff Theresa Stout (“Plaintiff”) filed a Response (Doc. 103) on November 30, 2015. The
United States filed a Reply (Doc. 107) on December 7, 2015. Oral argument on the United
States’ Motion to Dismiss was held on July 7, 2016.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a case
for failure to state a claim upon which relief can be granted. Rule 8(a)(2), in turn, requires a

complaint to contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although a court must accept all the complaint’s factual allegations as true, the same is not true
of legal conclusions. See id. Mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Thus, in ruling on a
motion to dismiss, a court should disregard all conclusory statements of law and consider
whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the
defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
DISCUSSION
Plaintiff’s claim against the United States arises under the Federal Tort Claims Act
(“FTCA”), alleging that the employees and agents of the United States had a duty to intervene
and prevent other law enforcement officers from using excessive force. Plaintiff alleges that the
employees and agents breached that duty when they failed to intervene to stop the firing of
approximately 75 bullets at Christopher Stout (“Mr. Stout”).
The United States first argues that Plaintiff’s claim should be dismissed for failure to
state a claim upon which relief can be granted. The United States notes that Plaintiff’s Second
Amended Complaint (Doc. 96) does not identify which officers could have intervened or the
means by which they could have intervened, contains no allegations that the officers knew that
any particular individual would discharge their weapons, and does not allege deliberation
amongst the United States’ officers regarding the shooting.

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Second, the United States argues that under the FTCA, the United States is liable for tort
claims in the same manner and extent as a private individual under like circumstances. See 28
U.S.C. § 2674. Correspondingly, federal courts only have jurisdiction over claims for damages
under circumstances where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. §
1346(b)(1). Thus, the United States is not liable under the FTCA unless state law recognizes a
comparable liability for private persons. See Ayala v. United States, 49 F.3d 607, 610–11 (10th
Cir. 1995). Oklahoma state law does not impose a duty on an actor to anticipate or prevent the
intentional or criminal acts of a third party unless: (1) the actor has a special responsibility
toward the one who suffers the harm; and (2) where the actor’s own affirmative act has created
or exposed the other to a high degree of risk of harm through such misconduct. See Henry v.
Merck & Co., 877 F.2d 1489, 1492 (10th Cir. 1989); Wofford v. Eastern State Hosp., 795 P.2d
516, 518 (Okla. 1990). The special responsibility requires a foreseeability of the specific risk to
the victim. See id. at 1492. The United States argues that Plaintiff’s Second Amended Complaint
contains no allegations sufficient to create foreseeability. Further, the United States’ officers
have no special responsibility toward fleeing fugitives, and absent some pre-shooting act of
misconduct by the United States’ officers, there was no obligation to intervene.
Plaintiff counters that the claims that the officers of the United States failed to intervene
are well supported by the facts set out in the Second Amended Complaint. Plaintiff has alleged
that there was such an extended barrage of gunfire that the officers emptied their clips and may
have stopped and reloaded, giving each officer ample opportunity to call for the others to cease
fire. Further, Plaintiff has alleged that the officers ordered Mr. Stout to raise his hands prior to
the shooting, giving further opportunity to prevent the use of deadly force. As to the United

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States’ second argument, Plaintiff argues that the United States is liable under both types of
special circumstances that create a duty to anticipate and prevent the acts of a third party. First,
Plaintiff argues that Mr. Stout was no longer a fleeing fugitive and was in the officer’s custody
when the events took place. Additionally, Mr. Stout was effectively restrained once the officers
disabled Mr. Stout’s vehicle. At that point, the officers had a special responsibility toward Mr.
Stout. Next, the second exception is met when the officers pointed their guns at Mr. Stout, which
no one could reasonably question placed him at a recognizable high risk of harm. See Holland
ex. rel. Overdorff v. Harrington, 268 F.3d 1179, 1192 (10th Cir. 2008) (“[P]ointing of firearms
directly at persons inescapably involves the immediate threat of deadly force.”). The officers
who pointed their weapons at Mr. Stout thus had a duty under Oklahoma law to intervene to
prevent him from suffering unnecessary harm. Additionally, Plaintiff argues that under
Oklahoma law, “[n]egligent performance of a law enforcement function is not shielded from
liability under Oklahoma Governmental Tort Claims Act.” State ex rel. v. Okla. Dep’t of Public
Safety v. Gurich, 238 P.3d 1, 4 (Okla. 2010). Thus, just as a private citizen in Oklahoma
conducting a citizen’s arrest would have a “special responsibility” toward the arrestee, the United
States has that same responsibility as a private person for purposes of the FTCA.
In its Reply, the United States reiterates its argument that Plaintiff has failed to plead
facts to support its argument that the officers had the opportunity to intervene and breached that
duty. Next, the United States argues that Plaintiff has failed to show that the officers had advance
notice of a shooting or reasonably knew that a shooting would occur, and thus has failed to show
foreseeability. As to the two types of special circumstances that create a duty to anticipate and
prevent the acts of a third party, the United States argues that neither should apply. First, there is
no special relationship with fleeing felons, and there are serious differences between the initial

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moment of seizure and being held in the custody of law enforcement. Mr. Stout was not in the
custody of law enforcement. Oklahoma courts have followed the Restatement and limited the
obligation of protection to those instances in which the person is deprived from their normal
power of self-protection. See RESTATEMENT (SECOND) OF TORTS § 320 (AM. LAW INST. 1965).
Second, the officers did not expose Mr. Stout to danger through their own misconduct, as it was
the flight of the Mr. Stout that created the need to point a weapon in his direction.
The Court does not agree with the United States’ first argument that Plaintiff has failed to
sufficiently allege facts to plausibly state a claim upon which relief can be granted. Plaintiff is
not required at this stage to identify which specific law enforcement officers could have
intervened, or the manner in which they should have intervened. The Court finds that Plaintiff
has alleged a plausible claim in that whether or not the officers could have intervened is a factual
question that should not be dismissed at this stage.
However, the Court does agree with the United States’ second argument that Oklahoma
state law only recognizes a duty to intervene in two special circumstances, neither one of which
is present here. Because the United States is not liable under the FTCA unless state law
recognizes a comparable liability for private persons, the Court finds that Plaintiff’s claim
against the United States should be dismissed.
A duty to intervene under Oklahoma law exists only where: (1) the actor has a special
responsibility toward the one who suffers the harm; and (2) where the actor’s own affirmative act
has created or exposed the other to a high degree of risk of harm through such misconduct. See
Henry v. Merck & Co., 877 F.2d 1489, 1492 (10th Cir. 1989); Wofford v. Eastern State Hosp.,
795 P.2d 516, 518 (Okla. 1990).

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As to the first duty, Plaintiff admits that Oklahoma has not applied the law in this
particular circumstance. Situations in which a special responsibility exists under Oklahoma law
have mainly involved standard tort relationships such as those between a patient and a doctor or
temporary custody of a minor child. See, e.g., Wofford, 795 P.2d at 518 (discussing
psychotherapist/patient relationship); Brewer v. Murray, 292 P.3d 41, 49–50 (Okla. Civ. App.
2012) (discussing custody of minor child). Under the facts as alleged by Plaintiff, Mr. Stout was
not in the custody of law enforcement at the time deadly force was used by the task force
officers. Consequently, under Oklahoma law the actor, i.e. the officers, had no special
responsibility toward the one who suffers the harm, i.e. Mr. Stout. To rule in favor of Plaintiff
on this issue, this Court would have to expand the scope of state law liability beyond that which
the Oklahoma appellate courts have recognized, a task this Court is not willing to undertake.
As to the second duty, the Court finds that Plaintiff has failed to show that the officers’
affirmative acts created the high degree of risk of harm. Plaintiff has not alleged or suggested
that there was no arrest warrant for Mr. Stout or that the task force was not permitted to arrest
Mr. Stout. Once Mr. Stout fled, it was not misconduct for the officers to point their weapons at a
fleeing felon. Also, Plaintiff has not explained how any affirmative act by each officer placed
Mr. Stout in greater danger of being shot. Rather, Plaintiff has alleged that the officers who
pointed their weapons at Mr. Stout automatically created a high degree of risk of harm through
such misconduct. The Court finds that after the officers brought Mr. Stout’s vehicle to a stop
using a tactical vehicle intervention, it was not wrongful for the officers to then draw their
weapons. Additionally, to agree with Plaintiff would be to create a duty to intervene under
Oklahoma law every time an officer drew his or her weapon.

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The Court’s decision to grant the United States’ motion is based solely on Oklahoma law
and the Court’s reluctance to expand the scope of existing state law liability beyond that which
the Oklahoma appellate courts have recognized. Accordingly, the Court finds that Defendant’s
Motion to Dismiss is well-taken, and therefore GRANTED. Plaintiff’s claim against the United
States is hereby DISMISSED WITH PREJUDICE.
SO ORDERED

________________________________
UNITED STATES DISTRICT JUDGE

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