Stout et al v. Long et al

Filing 92

MEMORANDUM OPINION and ORDER granting 51 Defendant United States' Motion for Summary Judgment or in the Alternative, 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

LANCE STOUT, et al.,
Plaintiffs,
v.

Case No. 15-cv-379-WPJ

UNITED STATES OF AMERICA, et al.
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING UNITED STATES’ MOTION
FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION TO DISMISS
THIS MATTER comes before the Court upon Defendant United States’ Motion for
Summary Judgment, or in the Alternative, Motion to Dismiss (Doc. 51), filed December 4, 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 for Summary Judgment, or in the Alternative,
Motion to Dismiss (Doc. 51) on December 4, 2015. Plaintiffs Lance Stout and Barbre Stout
(“Plaintiffs”) filed a Response (Doc. 61) on January 15, 2016. The United States filed a Reply
(Doc. 62) on January 22, 2016. Oral argument on the United States’ motion was held on July 7,
2016.
LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary
judgment 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). The movant bears the
initial burden of “show[ing] that there is an absence of evidence to support the nonmoving
party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)
(internal quotation marks omitted). Once the movant meets this burden, Rule 56 requires the
non-moving party to designate specific facts showing that there is a genuine issue for trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The party opposing a motion for summary judgment must “set forth specific facts
showing that there is a genuine issue for trial as to those dispositive matters for which it carries
the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238,
1241 (10th Cir. 1990). It is not enough for the party opposing a properly supported motion for
summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). To deny a motion for summary judgment, genuine factual
issues must exist that “can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.” Id. at 250. A mere “scintilla” of evidence will not avoid
summary judgment. See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). Rather,
there must be sufficient evidence on which the fact finder could reasonably find for the
non-moving party. See Anderson, 477 U.S. at 251. That said, the court must resolve all
reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in
the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550–55
(1999).
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

2

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
Plaintiffs’ 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. Plaintiffs allege that the
employees and agents breached that duty when they failed to intervene to stop the firing of
approximately 75 bullets at Stacey Stout (“Ms. Stout”).
The United States presents three main arguments. First, Plaintiffs’ claim is forever barred
because Plaintiffs filed suit more than six months after the denial of their administrative claims.
Second, Plaintiffs have failed to sufficiently allege facts to plausibly state a claim.
Third, Plaintiffs’ claim cannot survive because there is no analogous action against private
persons under Oklahoma law. The Court addresses each of the arguments in turn.
I.

Plaintiffs’ Claim is “Forever Barred”
Plaintiffs presented two administrative claims to the United States Marshals Service

under the FTCA. The first claim, dated August 1, 2013, was presented on behalf of Barbre and

3

Lance Stout as Personal Representatives of the Estate of Stacey Michelle Stout. The second
claim, dated August 1, 2013, was presented on behalf of Barbre and Lance Stout as Guardians of
C.S., a minor child.
The United States argues that because Plaintiffs filed suit more than six months after the
denial of their administrative claim, those claims are “forever barred.” See 28 U.S.C. § 2401(b).
28 U.S.C. § 2401(b) requires that a tort claim against the United States be filed within six months
after the date of mailing of the notice of final denial of the claim, or the claim is forever barred.
As exhibits and an affidavit, the United States shows that Plaintiffs’ administrative claim was
denied June 17, 2014, and that Plaintiffs’ original counsel received the denials by certified mail
on June 20, 2014. Nonetheless, Plaintiffs did not file suit until April 8, 2015, almost ten months
after the denial of their administrative claims. Thus, their claims are barred.
Plaintiffs argue that United States v. Kwai Fun Wong, recently decided by the United
States Supreme Court, resolves the issue at hand. See 135 S. Ct. 1625 (2015). There, the
Supreme Court interpreted “forever barred” to mean that “[i]t does not define a federal court’s
jurisdiction over tort claims generally, address its authority to hear untimely suits, or in any way
cabin its usual equitable powers.” Id. at 1633. Because Section 2401(b) reads like an ordinary,
run-of-the-mill statute of limitations, Congress’ separation of a filing deadline from a
jurisdictional grant indicates that the time bar is not jurisdictional and therefore does not preclude
tolling when circumstances warrant. See id at 1633–38. Plaintiffs argue that equitable tolling is
appropriate in certain extraordinary cases. In Holland v. Florida, 560 U.S. 631 (2010), the
lawyer in the case effectively abandoned his client and missed an important filing deadline.
Holland involved a habeas corpus petition in a death penalty case. See id. at 634. The Supreme
Court found equitable tolling applied where counsel had abandoned his client. See id. at 652.

4

Plaintiffs, in their argument and in an attached affidavit of Barbre Stout (“Ms. Stout”), provide
facts in support of their request that the Court find equitable tolling appropriate in this
circumstance.
The United States, in its Reply, argues that the affidavits attached to Plaintiffs’ Response
are inadmissible and fail to show that Plaintiffs have demonstrated the diligence and
extraordinary circumstances required for equitable tolling. However, the Court finds that at the
July 7, 2016 hearing regarding the Order to Show Cause for Abandonment (Doc. 70) and Order
to Show Cause for Sanctions (Doc. 71) directed at Plaintiffs’ former counsel, testimony provided
by Plaintiffs’ former counsel and Ms. Stout sufficiently demonstrated that extraordinary
circumstances existed and that Plaintiffs pursued their rights diligently. As outlined in detail in
the Court’s Order Finding Abandonment (Doc. 90), the Court finds both a factual and legal basis
demonstrating that equitable tolling is appropriate in the unique circumstances pertaining to this
case. Therefore, the Court finds that Plaintiffs’ claim, while filed more than six months after the
denial of their administrative claims, is not “forever barred” under 28 U.S.C. § 2401(b), and that
equitable tolling of the six-month period is appropriate. Accordingly, the Court declines to enter
judgment on behalf of the United States based upon the six-month requirement under 28 U.S.C.
§ 2401(b).
II.

Plausibility of Plaintiffs’ Second Amended Complaint
The United States next argues that Plaintiffs’ claim should be dismissed for failure to

state a claim upon which relief can be granted. The United States notes that Plaintiffs’ Second
Amended Complaint (Doc. 45) 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

5

amongst the United States’ officers regarding the shooting.
Plaintiffs counter 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. Plaintiffs have
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, Plaintiffs have alleged that the officers ordered Ms. Stout to raise her
hands prior to the shooting, giving further opportunity to prevent the use of deadly force.
The Court does not agree with the United States’ first argument that Plaintiffs have failed
to sufficiently allege facts to plausibly state a claim upon which relief can be granted. Plaintiffs
are 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 notes that as of the
date of entry of this order, no discovery has occurred. Consequently, information regarding who
among the officers who used deadly force fired first and how many shots were fired by each
officer is uniquely in the possession of the United States and not available to Plaintiffs.
Moreover, if the Court were to rule in favor of the United States on this particular issue at the
motion to dismiss stage, then a plaintiff asserting a FTCA claim in the context of multiple
officers using deadly force could never get past the motion to dismiss stage. The Court finds that
Plaintiffs have 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.
III.

Plaintiffs’ Claim Lacks an Analogous Action Under Oklahoma Law
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

6

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 Plaintiffs’ 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.
As to the United States’ second argument, Plaintiffs assert 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, Plaintiffs argue that Ms. Stout was not a fleeing fugitive and merely a
passenger in Christopher Stout’s vehicle and was in the officer’s custody when the events took
place. At that point, the officers had a special responsibility to intervene to protect Ms. Stout.
Next, the second exception is met when the officers pointed their guns at Ms. Stout, which no
one could reasonably question placed her 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

7

who pointed their weapons at Ms. Stout thus had a duty under Oklahoma law to intervene to
prevent her from suffering unnecessary harm. Additionally, Plaintiffs argue 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.
Next, the United States argues that Plaintiffs have failed to show that the officers had
advance notice of a shooting or reasonably knew that a shooting would occur, and thus have
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 moment of seizure and being held in the custody of law enforcement. Ms.
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 Ms. Stout to danger through
their own misconduct, as it was the flight of Christopher Stout, with Ms. Stout as a passenger,
that created the need to point a weapon in his direction.
The Court agrees with the United States’ 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 Plaintiffs’ claim against the United States should

8

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).
As to the first duty, Plaintiffs admit 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 Plaintiffs, Ms. Stout
was not in the custody of law enforcement at the time deadly force was used by the task force
officers, as Ms. Stout was simply a passenger in the vehicle being driven by Christopher Stout.
Consequently, under Oklahoma law the actor, i.e. the officers, had no special responsibility
toward the one who suffers the harm, i.e. Ms. Stout. To rule in favor of Plaintiffs 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. In reaching this
decision, the Court acknowledges that from a factual standpoint, Plaintiffs in Stout III have a
more compelling argument in asserting this FTCA claim than does Plaintiff in Stout II because
Ms. Stout did not have any type of outstanding warrant and was merely a passenger in
Christopher Stout’s vehicle. Nevertheless, the result in Stout III on the FTCA claim is the same
as in Stout II because of controlling Oklahoma law.

9

As to the second duty, the Court finds that Plaintiffs have failed to show that the officers’
affirmative acts created the high degree of risk of harm. Plaintiffs have not alleged or suggested
that there was no arrest warrant for Christopher Stout or that the task force was not permitted to
arrest him. Once Christopher Stout fled with Ms. Stout, it was not misconduct for the officers to
point their weapons at a fleeing felon. Also, Plaintiffs have not explained how any affirmative
act by each officer placed Ms. Stout in greater danger of being shot. Rather, Plaintiffs have
alleged that the officers who pointed their weapons at Ms. Stout automatically created a high
degree of risk of harm through such misconduct. The Court finds that after officers brought
Christopher 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 Plaintiffs would be to create
a duty to intervene under Oklahoma law every time an officer draws his or her weapon.
CONCLUSION
The Court’s decision to grant the United States’ motion to dismiss 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. Plaintiffs’ claim
against the United States is hereby DISMISSED WITH PREJUDICE.
SO ORDERED

________________________________
UNITED STATES DISTRICT JUDGE

10