Ellis v. Oklahoma City City of et al

Filing 14

ORDER granting 6 Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 10/3/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DORLES ELLIS,

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Plaintiff,
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v.
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THE CITY OF OKLAHOMA CITY, )
and COLTON ELLIS,
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Defendants.
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Case No. CIV-17-808-R

ORDER
Before the Court is the Motion to Dismiss (Doc. No. 6) filed by Defendant, the City
of Oklahoma City. Plaintiff responded in opposition to the motion and Defendant filed a
reply in support of its request that the Court dismiss Plaintiff’s claim under the Oklahoma
Constitution. Having considered the parties’ filings, the Court finds as follows.1
Plaintiff filed this action alleging he was subjected to excessive force by Officer
Colton Ellis on December 11, 2016, when Officer Ellis shot Plaintiff in the abdomen. His
claims arise under federal and state law, and Defendant City of Oklahoma City challenges
Count III of the Complaint, which cites the Oklahoma Constitution, Art. 2, § 30 and Bosh
v. Cherokee Building Auth., 305 P.3d 994 (Okla. 2013). Defendant contends Plaintiff
cannot pursue a Bosh claim, because a remedy exists under the Oklahoma Governmental
Tort Claims Act. See Perry v. City of Norman, 341 P.3d 689 (Okla. 2014). Plaintiff asserts
the City’s position is improper unless Defendant concedes Officer Ellis was acting within
1

Defendant City filed both an Answer and a Motion to Dismiss. (Doc. No. 5 and 6). Because the City filed an
Answer, the instant motion is more appropriately construed as a motion for judgment on the pleadings, which
ultimately does not impact the Court’s analysis. See Helm v. Kansas, 2009 WL 2168886 (D.Kan. July 21, 2009).

the scope of his employment when he shot Dorles Ellis and that it is inconsistent with the
position taken in the City’s Answer, wherein it asserted that Plaintiff’s OGTCA claim is
barred by exemption or limitations contained therein.
In Perry, the court noted “governmental employees such as police officers, whether
on duty or off duty, have been held to the possibility their conduct and use of excessive
force may have occurred within the scope of employment subjecting their employers to
liability.” Id. at 692. The court further noted that Bosh was barred from seeking relief under
the Act, because specific provisions exempt the state and political subdivisions from tort
liability arising out of the operation of prison facilities, which was not the case in Perry
nor is it the situation in the instant case. As noted by the court in Tracewell v. Silver, 2017
WL 58841 (N.D.Okla. Jan. 5, 2017), the Oklahoma Supreme Court decision in Perry was
that an arrestee has no claim against a City for the alleged excessive force of its police
officers under Bosh, because there is an available remedy under the Act.
While Mr. Tracewell presents several arguments in an attempt to avoid the
application of the Perry decision, the Perry case is largely indistinguishable
as it applies to the state law excessive force claim presented by Tracewell in
this case. Tracewell cannot avoid dismissal of his state claim against the City
by merely alleging that Silver and McClintock were acting outside the scope
of their employment, because the City may not be held liable under
respondeat superior doctrine—under either the OGTCA or Bosh—unless the
officers were acting within the scope of their employment. See Okla. Stat. tit.
51, § 153(A) (a governmental entity “shall not be liable under the [OGTCA]
for any act or omission of an employee acting outside the scope of the
employee's employment”); Bosh, 305 P.3d at 1004 (“The common law
theory of respondeat superior applies to municipal liability under [a Bosh
claim for violation of article 2, § 30 of the Oklahoma Constitution] to
determine when an employee of a municipality uses excessive force within
the scope of employment”). On the other hand, if the officers were acting
within the scope of their employment, then Tracewell's exclusive state
remedy against the City of Bartlesville was under the OGTCA. . . .
2

Id. at *4. As stated in Bosh,
Under the OGTCA, the question for governmental employer liability
continued to hinge on whether one acted within the scope of employment by
engaging in work assigned, or if doing what was proper, necessary and usual
to accomplish the work assigned, or doing that which was customary within
the particular trade or business. Consequently, governmental employees such
as police officers, whether on duty or off duty, have been held to the
possibility that conduct such as striking arrestees, physically and verbally
attacking customers of a private business, causing a car accident, or injuring
detainees/arrestees, may have occurred within the scope of employment
subjecting their employers to liability.
Bosh v. Cherokee Cty. Bldg. Auth., 2013 OK 9, ¶ 16, 305 P.3d 994, 1000, as corrected
(Okla. June 28, 2013). Because the question of the City’s liability is the same regardless of
whether the Court applies Bosh or the OGTCA, that is whether Officer Ellis was acting
within the scope of his employment at the time he shot Dorles Ellis, Defendant City is
entitled to dismissal of Plaintiff’s Bosh claim, because to prevail on Bosh would require
the same proof in this regard as a OGTCA claim. It is apparent that a Bosh claim exists
only where there is no OGTCA claim upon which to recover, at this juncture, Defendant’s
motion is well taken.
Defendant’s Motion to Dismiss is GRANTED.
IT IS SO ORDERED this 3rd day of October 2017.

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