Carmichael v. Oklahoma Department of Corrections et al

Filing 34

ORDER denying 31 Oklahoma City's Motion for Summary Judgment. IT IS FURTHER ORDERED that the Defendants show cause why Plaintiff is notentitled to summary judgment within 14 days of the date of this Order. Signed by Honorable Timothy D. DeGiusti on 5/17/2019. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THOMAS CARMICHAEL,
Plaintiff,
v.
Oklahoma County District Court
THE OKLAHOMA DEPARTMENT
OF CORRECTIONS, and Joe M.
Allbaugh, as Director, and the CITY
OF OKLAHOMA CITY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-17-869-D

ORDER
Before the Court is Defendant City of Oklahoma City’s (“Oklahoma City”)
Motion for Summary Judgment [Doc. No. 31]. Plaintiff has responded [Doc. No.
32]. The matter is fully briefed and at issue.
UNDISPUTED MATERIAL FACTS
Plaintiff has owned a residence at 2813 Shady Tree Lane in Oklahoma City
since August 6, 1993. The residence is within 2000 feet of multiple common areas
allegedly owned or operated by various homeowners associations (“HOA”).
Plaintiff resided in the residence at 2813 Shady Tree Lane until his convictions and
incarceration in May 2002.
On May 15, 2002, Plaintiff pleaded guilty to charges of First Degree Rape, Indecent
or Lewd Acts with A Child Under Sixteen, and Indecent Exposure. As a result of these

convictions, Plaintiff is required to register as a convicted sex offender pursuant to the
Oklahoma Sex Offenders Registration Act (“OSORA”), Okla. Stat. tit. 57, §§ 581-590.2.
Plaintiff was discharged from prison and registered as a sex offender in January
2012. In March 2012, Plaintiff was charged with two counts of Lewd Acts with a Child
Under Sixteen and on August 7, 2015, he was convicted on those charges and sentenced to
fourteen (14) years imprisonment, all but the first four years suspended, to run concurrent
with his sentence for his previous convictions.
On November 1, 2015, amendments to Okla. Stat. tit. 57, § 590 became effective,
which made it:
unlawful for any person registered pursuant to the Sex Offenders
Registration Act to reside, either temporarily or permanently, within a two
thousand-foot radius of any . . . playground or park that is established,
operated or supported in whole or in part by a homeowners’ association or a
city, town, county, state, federal or tribal government, or a licensed child care
center as defined by the Department of Human Services.
Okla. Stat. tit. 57, § 590(A). “Park” is defined in the statutes as “any outdoor public area
specifically designated as being used for recreational purposes that is operated or supported
in whole or in part by a homeowners' association or a city, town, county, state, federal or
tribal governmental authority.”1 Okla. Stat. tit. 21, § 1125. These are the same restrictions
and definitions acknowledged by Plaintiff when he initialed each paragraph of, and signed,
the Notice of Duty to Register prior to his release from incarceration in December 2016.

1

The Court notes that Oklahoma City’s Undisputed Fact No. 5 incorrectly quotes the
statutory definition of “park” by omitting the word “specifically.” Motion at 3; Okla. Stat.
tit. 21 § 1125; 2015 Okla. Sess. Laws Ch. 270, §1.
2

Notice of Duty to Register (Pursuant to Title 57, Sections 581-590.2 and Title 21, Section
1125 of the Oklahoma State Statutes) [Doc. No. 31-6] at ¶¶ 9 and 10.
On the day of his release, December 30, 2016, Plaintiff registered with the
Oklahoma City Police Department as a transient and has continued to register as a transient
since that date.
Plaintiff filed the instant action on May 3, 2017, and Oklahoma City removed the
case to this Court on August 14, 2017.
STANDARD OF DECISION
Summary judgment is proper “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); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Universal Underwriters
Ins. Co. v. Winton, 818 F. 3d 1103, 1105 (10th Cir. 2016). “An issue is ‘genuine’ if there
is sufficient evidence on each side so that a rational trier of fact could resolve the issue
either way,” and “[a]n issue of fact is ‘material’ if under the substantive law it is essential
to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986)).
The Court's inquiry must be whether the evidence, when viewed “through the prism
of the substantive evidentiary burden,” Anderson, 477 U.S. at 254, “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.” Id. at 251-52. Although the Court views all facts in the
light most favorable to the nonmoving party at the summary judgment stage, “there is no

3

issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Id. at 249 (citations omitted).
“[I]n opposing a motion for summary judgment, the nonmoving party ‘cannot rest
on ignorance of facts, on speculation, or on suspicion.’” Bird v. W. Valley City, 832 F.3d
1188, 1199 (10th Cir. 2016) (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.
1988)). The nonmoving party “must present affirmative evidence in order to defeat a
properly supported motion for summary judgment. This is true even where the evidence is
likely to be within the possession of the defendant, as long as the plaintiff has had a full
opportunity to conduct discovery.” Anderson, 477 U.S. at 257.
DISCUSSION
As stated in this Court’s previous Order [Doc. No. 9], the Tenth Circuit in Shaw v.
Patton, 823 F.3d 556 (10th Cir. 2016), determined:
that the Oklahoma legislature enacted OSORA to protect public safety "by
reducing recidivism among sex offenders, improving law enforcement's
ability to identify sex offenders, and enabling law enforcement to alert the
public to potential danger from these offenders.” Id. (citing Starkey v. Okla.
Dep't of Corrs., 305 P.3d 1004, 1020 (Okla.2013)). The court then concluded
the restrictions “place children out of sight and mind, beyond senses that
could stir the perversions of known child sex offenders” and that “at least
arguably, a 2000-foot restriction reduces opportunity, diminishes temptation,
and thereby decreases the risk that a proven child sex offender will reoffend.”
Id. at 574.
Order [Doc. No. 9] at 8-9. There is no dispute that Plaintiff is a sex offender required to
comply with the residency restrictions of OSORA or that the legislative purpose is as stated
in Shaw. Motion at 8, 12, 13; Response at 5, 6. However, the crux of Plaintiff’s claims is
whether OSORA is appropriately applied to the grassy area as argued by Oklahoma City

4

in restricting him from living in his residence at 2813 Shady Lane, and whether that
application furthers the legislative purpose of OSORA. Amended Complaint2 [Doc. No.
10] at ¶¶ 9, 16, 17, 18.
Oklahoma City asserts the undisputed material facts demonstrate that: (1) the
residency restriction does not violate the Ex Post Facto Clause; and, (2) the residency
restriction does not violate the Due Process Clause. Although Plaintiff admits Oklahoma
City’s undisputed material facts, he maintains that this application is violative of the Ex
Post Facto Clause and the Due Process Clause as a matter of law. In support thereof,
Plaintiff contends these common areas: (1) are not parks; and, (2) are not designated, or
are improperly designated, for recreational use. Response at 3, 6.
A.

Application of the OSORA to Plaintiff’s Residence

Although Oklahoma City contends, and Plaintiff concedes, that the home is within
2000 feet of multiple common areas, the salient question is whether these “common areas”
meet the statutory definition of “park” thereby triggering the residency restrictions of
OSORA.3 Response at 2 (admitting Undisputed Material Fact No. 6). In order for

2

Plaintiff denominates his operative amended pleading a “Second Amended Petition”;
herein the Court refers to it as a Second Amended Complaint, consistent with the Federal
Rules of Civil Procedure.
3

Although Plaintiff concedes in his Amended Complaint that the “proximity” of “a small
area of grass owned and supported by a homeowners’ association” resulted in the
application of the residency restriction to his home, the Amended Complaint does not
identify with particularity this grassy area. Amended Complaint at ¶ 9. In its Motion,
Oklahoma City likewise fails to specifically identify the area of grass described in the
Amended Complaint and instead refers to multiple common areas it alleges are sufficient
to trigger the residency restrictions.

5

Oklahoma City to establish the material fact that the residency restrictions of OSORA
apply to Plaintiff’s residence, Oklahoma City must present sufficient evidence that there is
no genuine dispute that a park or playground, as defined by Okla. Stat. tit. 57, § 590(A)
and Okla. Stat. tit. 21, § 1125, is located within 2000 feet of Plaintiff’s home. Fed. R. Civ.
P. 56(a); Adler, 144 F.3d at 670; Anderson, 477 U.S. at 251-52.
Accordingly, Oklahoma City must demonstrate that: (1) an “outdoor public area” is
within 2000 feet of Plaintiff’s home; (2) the “outdoor public area” is “established, operated
or supported in whole or in part by a homeowners’ association”; and, (3) the “outdoor
public area” has been “specifically designated as being used for recreational purposes.”
Okla. Stat. tit. 57, § 590(A); Okla. Stat. tit. 21, § 1125. Having reviewed Oklahoma City’s
evidence,4 the Court finds that Oklahoma City has established only that an outdoor area is
located within 2000 feet of Plaintiff’s home.

4

The Court notes that in supporting its contention that the “common areas” located within
2000 feet from Plaintiff’s home are “parks” as defined by the applicable statutes, Oklahoma
City relies entirely on materials that are not in conformance with Fed. R. Civ. P.
56(c)(1)(A). Rule 56(c)(1)(A) requires that a party asserting an undisputed material fact
must “cite to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A)
(emphasis added). Oklahoma City omits any citation indicating that Exhibits 1, 3, 5, 6, 7,
8, 9, 10, and 11 to its Motion can be found in any part of the record enumerated by Rule
56(c)(1)(A) or reference to any authoritative case law supporting the Exhibits’
admissibility. However, because the Court finds that the materials presented as evidence
fail to support Oklahoma City’s assertion that “common areas” are “parks” under OSORA
and because Plaintiff fails to object to this “evidence,” the Court considers it only for the
purposes of the instant motion.

6

Oklahoma City repeatedly refers to “common areas” within 2000 feet of Plaintiff’s
residence and attaches what is purported to be a map of those common areas to its Motion.5
Map of Oklahoma City [Doc. No. 31-5] at 1.

However, “common areas” are not

enumerated in Okla. Stat. tit. 57 § 590(A), nor does Oklahoma City provide any evidence
that any of these “common areas” are established, operated or supported by an HOA or that
they are specifically designated for recreational use. Okla. Stat. tit. 57, § 590(A); Okla.
Stat. tit. 21, § 1125. Finally, Oklahoma City presents no legal argument to support such a
broad interpretation of the term “common area” within the language of OSORA.
The Court notes that the map of “common areas” provided by Oklahoma City is
largely unintelligible, with the names of various “common area” plats superimposed over
green and white diagonal lines. Map of Oklahoma City at 1. No landmarks, streets, or any
other point of reference can be identified other than the word “Springlake.” Although the
second page of the same exhibit is an aerial photograph of what the Court can only assume
is the same area, it does not appear to be of the same scale, nor are any of the “common
areas” identified thereon. Id. at 2. Further, the Court notes no areas resembling a park or
playground are discernible on the aerial photograph and the word “Springlake” is absent.
The Court takes judicial notice of the Oklahoma County Tax Assessor’s records,
including plat boundaries and aerial photographs, and notes a search of those records
reveals that none of the open land depicted in the aerial photograph or map submitted by

5

Oklahoma City fails to identify the source of this map or where in the record it can be
located other than as an exhibit to its Motion.
7

Oklahoma City is owned by a homeowners association.6 Although it appears that some
lots may be owned by the developers of various subdivisions, there is no indication in the
Tax Assessor’s records, or the materials submitted by Oklahoma City, that these lots are
owned by an HOA, that they are operated or supported by an HOA, or that they are
specifically designated for recreational purposes as required by the plain language of the
applicable statutes in this case.
Oklahoma City points to one common area in particular and conclusively states that
in order to reach Plaintiff’s residence:
the fastest way is to turn into Falcon Ridge Estates HOA. Just to the south of
that entrance is a large piece of land that is less than 800 feet from 2813
Shady Tree Lane (Map, Exhibit 10). The common area is approximately 600
feet by 200 feet, and can be used anytime for recreational purposes. (Exhibit
11, map and pictures of Falcon Ridge Estates HOA common area).
Motion at 17.7 However, because an area can be used for recreation does not mean that it
is specifically designated, as required by statute, for that purpose. Nor does the statute

6

“A court may take judicial notice of its own files and records, as well as facts which are
a matter of public record.” Tatten v. City & Cty. of Denver, 730 Fed. Appx. 620, 624 (10th
Cir. 2018), cert. denied sub nom. Tatten v. City & Cty. of Denver, Colo., 139 S. Ct. 826,
202 L. Ed. 2d 579 (2019) (citing Gee v. Pacheco, 627 F.3d 1178, 1194 (10th Cir. 2010));
see also, United Food & Commercial Workers Union v. Chesapeake Energy Corp., CIV09-1114-D, 2013 WL 4494384, at *3 (W.D. Okla. Mar. 29, 2013), aff'd sub nom. United
Food & Commercial Workers Union Local 880 Pension Fund v. Chesapeake Energy
Corp., 774 F.3d 1229 (10th Cir. 2014), as amended nunc pro tunc (Nov. 12, 2014) (stating
that the Court may take judicial notice of matters of public record).
7

Although the aerial photograph contains a reference to google.com as its source, the street
level photographs of this “large piece of land” are of unknown origin. Aerial and Street
Level Photographs [Doc. No. 11]. The Court notes that Oklahoma City attaches all of these
photographs without citation to the record thereby failing to conform to Rule 56(c)(1)(A).

8

provide for application of OSORA to undefined, unqualified “large piece[s] of land.” Id.
On their face, and as interpreted by Oklahoma City, the subject Oklahoma statutes
unambiguously require that in order for “any outdoor public area” to be deemed a “park,”
it must be “specifically designated as being used for recreational purposes.” Okla. Stat.
tit. 21 § 1125 (emphasis added); Motion at 3.
Review of the Oklahoma County Tax Assessor’s records reveals that the lot
identified by Oklahoma City as the Falcon Ridge Estates “common area” is owned by the
Oklahoma State Department of Transportation and described in the tax assessor’s records
as a vacant lot. Oklahoma County Tax Assessor Account No. R134853329; Oklahoma
County Clerk’s Office, Instrument No. 1985014601, Book 5283, Page 1122, (reflecting a
warranty deed filed on January 10, 1985, conveying this lot to the State of Oklahoma
Department of Transportation).8 Pursuant to Okla. Stat. tit. 21 § 1125, a “park” may be
operated or supported by a state authority, however, as with the other “common areas”
alluded to by Oklahoma City, no evidence has been presented indicating that this lot has
been specifically designated for recreational use or that it is operated or supported by the
Falcon Ridge Estates HOA.
Because Oklahoma City has failed to present any evidence that OSORA has been
applied to Plaintiff’s residence in accordance with the statutory requirements, the Court
need not address Plaintiff’s claims or the Constitutional arguments in his Response. The
Court finds that Oklahoma City has failed to demonstrate that there is no genuine issue of

8

The Court also takes judicial notice of the Oklahoma County Court Clerk’s records.
9

fact and it is entitled to judgment as a matter of law as to Plaintiff’s claims. Accordingly,
Oklahoma City’s Motion for Summary Judgment must be denied.
B.

Consideration of Summary Judgment in Favor of Plaintiff

“[T]the practice of granting summary judgment sua sponte is not favored.” Ward
v. Utah, 398 F.3d 1239, 1245–46 (10th Cir. 2005) (quoting Procter & Gamble Co. v.
Haugen, 317 F.3d 1121, 1132 (10th Cir.2003)). However, “district courts are widely
acknowledged to possess the power to enter summary judgments sua sponte, so long as the
losing party was on notice that [it] had to come forward with all of [its] evidence.” Celotex
Corp. v. Catrett, 477 U.S. 317, 326, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986); Fed.
R. Civ. P. 56(f)(1). “When there has been a motion but no cross-motion, the judge already
is engaged in determining whether a genuine issue of material fact exists and the parties
have been given the opportunity to present evidence designed either to support or refute
the request for entry of summary judgment.” Jones v. State Farm Mut. Auto. Ins. Co., 653
Fed. Appx. 598, 608 (10th Cir. 2016) (quoting 10A Charles Alan Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998)). In such cases,
an entry of summary judgment in favor of the nonmovant is appropriate. Id. at 608, 609.
Nevertheless, the Court acknowledges the other defendants in this case were not
parties to Oklahoma City’s Motion for Summary Judgment. Therefore, the Court hereby
informs all of the parties in this case that based on the materials submitted by Oklahoma
City it is considering whether Plaintiff is entitled to summary judgment. The Court directs
Defendants to show cause through appropriate submissions consistent with Fed. R. Civ. P.

10

56 and this Court’s Local Rules, why Plaintiff is not entitled to summary judgment on his
claims within fourteen (14) days of the date of this Order.
CONCLUSION
For the reasons stated above, Defendant Oklahoma City’s Motion for Summary
Judgment [Doc. No. 31] is DENIED.
IT IS FURTHER ORDERED that the Defendants show cause why Plaintiff is not
entitled to summary judgment within fourteen (14) days of the date of this Order.
IT IS SO ORDERED this 17th day of May, 2019.

11