McCalister v. Oklahoma City Police Department et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION 77 of Magistrate Judge Charles Goodwin...plaintiff's motion for summary judgment 65 is denied; defendants' motion for summary judgment 63 is denied with respect to plaintiff's excessive f orce claim against defendant Castlebury and granted with respect to his excessive force claim against defendant Grimes based on his asserted duty to intervene and protect plaintiff; plaintiff's claims against defendant Oklahoma City Police Department are dismissed without prejudice. Signed by Honorable Joe Heaton on 01/02/2018. (lam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIE D. McCALISTER,
Plaintiff,
vs.
OKLAHOMA CITY POLICE
DEPARTMENT, et al.,
Defendants.
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NO. CIV-15-1282-HE
ORDER
Plaintiff Willie D. McCalister filed this § 1983 action against the Oklahoma City
Police Department and Oklahoma City police officers Josh Castlebury and Chris Grimes.
He claims the officers subjected him to excessive force when arresting him.1 Consistent
with 28 U.S.C. §636, the matter was referred for initial proceedings to Magistrate Judge
Charles B. Goodwin. He has issued a Report and Recommendation (“Report”) regarding
cross motions for summary judgment filed by the parties. He recommends that plaintiff’s
motion be denied in its entirety and that defendants’ motion be granted in part and denied
in part.2
1
Plaintiff asserts in his complaint that defendants violated his Eighth and Fourteenth
Amendment rights “to be free from cruel punishment” Doc. No. 1, pp. 6, 7. However, the
magistrate judge considered his claims under the Fourth Amendment’s “objective
reasonableness” standard because he had not yet been “charged with the underlying offenses
when he was arrested.” Doc. #77, p. 5. See Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir.
2010).
2
References to documents are to the CM/ECF document and page number.
The material facts surrounding plaintiff’s arrest are, for the most part, undisputed.
See Doc. #77, pp. 6-7 & n.5.3 On the evening of July 31, 2014, defendants Grimes and
Castlebury were patrolling the Heritage Apartments in Oklahoma City, a complex known
for gang and narcotics activity. Defendant Grimes noticed a strong odor of marijuana
coming from the open door of an apartment. From what he could see inside the apartment
– a person holding a roll of money talking to someone else – he concluded a drug deal was
taking place. He told defendant Castlebury what was happening and then pushed the door
open and entered the apartment to investigate the marijuana odor. Defendant Castlebury
walked in behind him and they saw plaintiff run into the kitchen holding a plastic bag
containing what appeared to be a brick of marijuana. While defendant Grimes took another
person, Jeron Blandon, into custody, defendant Castlebury approached plaintiff and
ordered him to get on the ground.
The parties dispute some of the facts regarding what happened next while defendant
Castlebury was subduing plaintiff and taking him into custody. However, the magistrate
judge states the following is not disputed: “Defendant Castlebury took Plaintiff to the
ground by grasping the back of Plaintiff’s head, struck Plaintiff in the face at least once,
and handcuffed Plaintiff’s hands behind his back while he was lying prone on the floor.”
Doc. #77, p. 8. He states that “[t]he parties also agree that Plaintiff’s face, head, and bare
3
The magistrate judge notes that in his complaint plaintiff does not challenge either the
arrest itself or defendants’ warrantless entry into the apartment where he was arrested. See Doc.
#77, p. 5 n.4. Plaintiff asserts in his objection that he did not challenge the arrest because he did
not want to retract his plea. Because plaintiff did not raise that issue in his complaint, it is not
properly before the court and will not be addressed here.
2
shoulders were photographed immediately after the incident occurred, and that the
photocopies of the undated color photographs that Defendants submitted with their motion
accurately depict the injuries [Plaintiff] sustained.” Id. (internal citations and quotation
marks omitted).
Plaintiff was transported to the Integris Southwest Medical Center emergency
department to be medically cleared before being taken to jail. Medical records attached to
the complaint show that plaintiff was diagnosed with a head injury or concussion, which
did “not appear serious at th[e] time,” and had suffered contusions on his face, head and
upper extremities.” Doc. #1-1, pp 6, 13, 21. Testing showed “[s]oft tissue swelling in the
left temporal scalp,” id. at p. 20, but, as the magistrate judge notes, “no dislocations,
fractures, or internal bleeding around Plaintiff’s head and shoulders.” Doc. #77, p. 9; see
Doc. #1-1, pp. 15, 20-21. The attending physician discharged plaintiff into police custody
with a prescription for acetaminophen-hydrocodone for pain. Plaintiff alleges in his
complaint that defendant Castlebury used excessive force when effecting his arrest and that
defendant Grimes “in his supervisory capacity failed to intervene or stop [Defendant]
Castlebury’s abusive treatment.” Doc. 1, p. 7.
In his Report, the magistrate judge first addressed the motions filed by defendants
Castlebury and Grimes. He agreed with defendant Castlebury that his conduct was
objectively reasonable up to the point where he placed plaintiff in handcuffs because
plaintiff was resisting arrest and was a threat to the safety of the officers inside the small
apartment.
However, he concluded that a genuine factual dispute exists over what
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happened after plaintiff was restrained – whether at that point, as plaintiff contends in his
affidavit, defendant Castlebury used excessive force by stomping on his head.
As for defendant Grimes, the magistrate judge concluded plaintiff failed to present
evidence that he had a reasonable opportunity to intervene and prevent defendant
Castlebury’s asserted use of excessive force.4 He determined the evidence was undisputed
that, at the time defendant Castlebury was struggling with plaintiff elsewhere inside the
apartment,5 defendant Grimes “was engaged with another suspect.” Doc. #77, p. 21.
In his motion plaintiff sought summary judgment on his claims against both
defendants. The magistrate judge concluded plaintiff’s motion should be denied. He
determined material questions of fact exist with respect to plaintiff’s excessive force claim
against defendant Castlebury, such as whether the amount of force used was excessive and
“whether a reasonable officer on the scene would have thought Plaintiff was ‘actively
resisting arrest’ and posed ‘an immediate threat’ to officers and others inside the
apartment.” Doc. #77, p. 23 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). And
for the reason discussed earlier --the lack of evidence that he had an opportunity to
4
Although plaintiff referred to defendant Grimes as defendant Castlebury’s supervisor in
the complaint, the magistrate judge, “[c]onsistent with the parties’ arguments on summary
judgment,” construed plaintiff’s claim against defendant Grimes as being based on his failure to
protect plaintiff from harm, rather than being due to his failure to supervise defendant Castlebury
or exercise control over him. See Doc. #77, p. 19.
5
Plaintiff did not respond to defendants’ summary judgment motion and, as a result, the
magistrate judge properly concluded he waived his right to controvert the facts asserted in it. See
Reed v. Bennett, 312 F.3d 1190, 1196 (10th Cir. 2002) (“By failing to file a response within the
time specified by the local rule, the nonmoving party waives the right to respond or to controvert
the facts asserted in the summary judgment motion.”); LCvR56.1(e)).
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intervene -- the magistrate judge concluded that plaintiff was not entitled to summary
judgment against defendant Grimes.
The magistrate judge addressed one final issue. Plaintiff named the Oklahoma City
Police Department (“OCPD”) in the caption of his complaint, but did not make any
allegations against the OCPD or attempt to serve it. The magistrate judge concluded
plaintiff had therefore failed to state a claim against the OCPD and his claims against it
should be dismissed without prejudice.6
Plaintiff and defendant Castlebury filed objections to the Report. Plaintiff argues
that defendant Grimes was “5 feet away from J. Castlebury during the assault against
Plaintiff, not in another part of the apartment.” 7 Doc. #78, pp. 1-2. He also asserts that
because it was a “one bedroom apartment,” which was “not that big,” defendant Castlebury
“could clearly see what was going on.” Id. at p. 2. One problem is plaintiff does not
substantiate or offer any evidence to support his statements in his objection. A more serious
problem, though, is plaintiff admitted, by not controverting defendants’ facts in their
summary judgment motion, that at the time “Officer Castlebury was struggling with [him],
Sgt. Grimes was attempting to secure Jeron Blandon for officer safety.” Doc. #63, p. 2, ¶4.
Plaintiff thus, in effect, conceded that defendant Grimes could not have had “a realistic
6
The magistrate judge also noted that police departments usually are not considered
suable entities under § 1983. See Lindsey v. Thomson, 275 Fed. Appx. 744, 747 (10th Cir. 2007).
7
As one of his objections, plaintiff appears to assert that the magistrate judge and
defendants have mischaracterized his allegations. He states he has always claimed that defendant
Castlebury both punched him in the face and stomped him in the head. As this dispute does not
affect the rulings on the motions for summary judgment, the court finds it unnecessary to resolve
the issue or address it.
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opportunity to intervene to prevent the harm from occurring.” Vondrak v. City of Las
Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008). And he is required to establish that the
defendant had the ability to intercede “[i]n order for liability to attach.” Id. Simply being
close by would not be enough to hold defendant Grimes liable under § 1983 if he was, at
the very same time, trying to subdue another suspect. Plaintiff has failed to offer any
evidence creating a fact question as to whether defendant Grimes was “capable of
preventing the harm [to plaintiff] being caused by another officer.” Id. The magistrate
judge therefore correctly concluded that, based on the undisputed facts, defendant Grimes
is entitled to summary judgment. His request for summary judgment will be granted.
Defendant Castlebury objects to the magistrate judge’s determination that he is not
entitled to summary judgment because a material fact question remains with respect to
what occurred after plaintiff was handcuffed. He relies on the Supreme Court’s decision
in Scott v. Harris, 550 U.S. 372 (2007), which he argues the magistrate judge read too
narrowly. The court disagrees.
The Supreme Court held in Scott that “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on
a motion for summary judgment.” Id. at 380. However, as the magistrate points out, Scott
included “a videotape capturing the events in question.” Id. at 378.
Here, though, the
photographs defendant Canterbury is relying on do not depict the actual event as it
unfolded. Rather, the only evidence as to what happened after plaintiff was restrained are
the differing accounts of the parties. The correct question, as framed by the magistrate
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judge, is whether the “depictions of the visible effects of the alleged postrestraint assault,
i.e., the relatively ‘minor’ injuries shown in the photographs and medical records, cause
Plaintiff’s account of what happened to be ‘so utterly discredited’ that no reasonable jury
could believe it.” Doc. #77, p. 17 (quoting Scott, 550 U.S. at 380). The magistrate judge
concluded a reasonable jury could believe plaintiff’s sworn version of the incident, despite
the photographs showing limited injuries. The photos might “speak to the extent of
Plaintiff’s injuries (and damages),” but a jury could nonetheless find that defendant
Castlebury used excessive force after plaintiff was restrained. Doc. #77, p. 17.
The magistrate judge also found plaintiff’s testimony to be supported, rather than
negated, by the medical records. For example, he cites plaintiff’s discharge papers showing
“that he was assessed with a minor concussion that could have resulted ‘from a blow to the
head.’” Doc. #77, p. 18 (quoting Doc. #1-1, p.6). That distinguishes this case from Bruner
v. Stevens, 2014 WL 4435931 (W.D.Okla. Sept. 9, 2014), another case relied on by
defendant.
The Tenth Circuit’s discussion of Scott in Rhoads v. Miller, 352 Fed. Appx. 289,
291 (10th Cir. 2009), where the court was considering a denial of qualified immunity, also
is instructive. The court noted that, when considering whether a defendant is entitled to
qualified immunity it usually adopted the plaintiff’s version of the facts, unless “that
version ‘is so utterly discredited by the record that no reasonable jury could have believed
him.’” Id. (quoting Scott, 550 U.S. at 380). While there were obvious issues in Rhoads
with the plaintiff’s testimony – he was an alcoholic and had admitted memory problems –
the court determined that the Scott standard was not met. After observing that, “[i]n Scott,
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the plaintiff's testimony was discredited by a videotape that completely contradicted his
version of the events,” the Tenth Circuit stated: “Here, there is no videotape or similar
evidence in the record to blatantly contradict Mr. Rhoads' testimony. There is only other
witnesses' testimony to oppose his version of the facts, and our judicial system leaves
credibility determinations to the jury.” Id. (internal citations omitted); see also Cordero v.
Froats, 613 Fed. Appx. 768, 769 (10th Cir. 2015) (concluding Scott standard not met
despite existence of audio recordings, a videotape and physical evidence, though noting
that “video here does not clearly show [decedent] holding a gun”). Here, too, defendant
Castlebury has not come forth with a videotape or similar evidence which “blatantly
contradicts” plaintiff’s affidavit.
The court agrees with the magistrate judge’s analysis and his conclusion that
defendant Castlebury is not entitled to summary judgment because of the existence of
questions of material fact. See Rhoads, 352 Fed. Appx. at 291 (“And given the undisputed
fact of injury, Mr. Rhoads' alcoholism and memory problems go to the weight of his
testimony, not its admissibility.”). Defendant Castlebury’s request for summary judgment
will be denied.
Accordingly, the court ADOPTS Magistrate Judge Goodwin’s Report and
Recommendation. Plaintiff’s motion for summary judgment [Doc. #65] is DENIED.
Defendants’ motion for summary judgment [Doc. #63] is DENIED with respect to
plaintiff’s excessive force claim against defendant Castlebury and GRANTED with
respect to his excessive force claim against defendant Grimes based on his asserted duty to
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intervene and protect plaintiff. Plaintiff’s claims against defendant Oklahoma City Police
Department are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated this 3rd day of January, 2018.
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