Phelps v. Holliman et al
ORDER granting 5 Defendant Town of Dibble's Partial Motion to Dismiss and Brief in Support on Plaintiff's Claim of Municipal Liability. Plaintiff's 42 U.S.C. § 1983 municipal liability claim against defendant Town of Dibble, Oklahoma, is DISMISSED WITHOUT PREJUDICE. Signed by Judge Stephen P. Friot on 11/14/2023. (llg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CRAIG ALLEN PHELPS,
-vsDANIEL HOLLIMAN and TOWN
OF DIBBLE, OKLAHOMA,
Case No. CIV-23-755-F
Defendant Town of Dibble, Oklahoma (“the Town”), has moved for partial
dismissal of plaintiff’s complaint under Rule 12(b)(6), Fed. R. Civ. P. Specifically,
it seeks dismissal of plaintiff, Craig Allen Phelps’ municipal liability claim under 42
U.S.C. § 1983. Doc. no. 5. Plaintiff Craig Allen Phelps (Phelps) has responded,
opposing dismissal. Doc. no. 10. The Town has replied. Doc. no. 14. The matter
is at issue.
According to the complaint, in March of 2022, Phelps was arrested by Jessica
Dobbs (Dobbs), an officer with the Dibble Police Department (DPD), on suspicion
of non-violent misdemeanors. Dobbs handcuffed Phelps and transported him to the
DPD. Thereafter, Dobbs decided the charges against Phelps would be municipal
Defendant Daniel Holliman (Holliman), also an officer with the DPD, was
tasked with transporting Phelps to the Grady County Jail (Jail), where the DPD
municipal arrestees were housed. Holliman told Phelps that he was to be taken to
the Jail. Phelps stood up and started walking towards the door with Holliman.
Phelps is five feet, five inches tall and weighs approximately 120 pounds. According
to Phelps, Holliman is several inches taller than him and extremely well built.
As they walked toward the door to leave, Holliman had his left hand on
Phelps’ handcuffed right arm. When they were approximately four feet from the
door, Holliman, for no apparent reason, stopped and pulled backwards on Phelps’
right bicep area. The force of the pull stopped Phelps and his momentum then took
him leaning back towards the door.
Suddenly, without provocation, Holliman grabbed the handcuffed Phelps with
both arms, violently threw him to the ground, got on top of him, and put his forearm
across the back of Phelps’ neck. At the time, Phelps was handcuffed behind his
back, compliant, not resisting, and posed no threat to Holliman, himself, or anyone
As a result of Holliman’s actions, Phelps’ face smashed into the floor and
blood started pouring out of his mouth and chin, which was split open. Phelps was
transported to Norman Regional Hospital by McClain Grady EMS. His injuries
included a fractured bone above his mouth and broken teeth. His chin required
After receiving treatment, Phelps was again to be transported by Holliman to
the Jail. As they approached the door to leave, Phelps verbally expressed his
discontent with Holliman’s treatment of him.
In response to Phelps’ verbal
complaints, Holliman performed a leg sweep on Phelps and took him to the ground.
The force of the takedown caused Phelps significant physical and emotional pain
and suffering. At the time of Holliman’s actions, Phelps was handcuffed behind his
back, not resisting, not attempting to flee, was in significant pain, and posed no risk
of danger to Holliman, himself, or anyone else.
Holliman transported Phelps to the Jail. Subsequently, the charges against
Phelps were dropped.
In his complaint, Phelps claims, in part, that Holliman, at the DPD and the
hospital, used excessive force against him in violation of the Fourth and Fourteenth
Amendments, and he seeks to recover damages against Holliman under § 1983.
Phelps also seeks to recover damages against the Town under § 1983, alleging
municipal liability. According to Phelps, there was an affirmative link between the
excessive force used by Holliman and the Town’s policies, practices and customs.
The Town moves for dismissal under Rule 12(b)(6) of the alleged § 1983
claim, contending that the allegations in the complaint are insufficient to state a
plausible claim of municipal liability under § 1983.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
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)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
The Tenth Circuit addressed municipal liability under § 1983 in Waller v. City
and County of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019). In so doing, the
appellate court stated:
The Supreme Court has made clear that a local government may not be
sued under § 1983 for an injury inflicted solely by its employees or
agents. In other words, a municipality cannot be held liable under
§ 1983 on a respondeat superior theory. Instead, the government as an
entity may only be held liable when execution of a government’s policy
or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury.
Thus, to establish municipal liability, a plaintiff must first demonstrate
a municipal policy or custom, which may take one of the following
(1) a formal regulation or policy statement; (2) an informal
custom amounting to a widespread practice that, although
not authorized by written law or express municipal policy,
is so permanent and well settled as to constitute a custom
or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the
ratification by such final policymakers of the decisions—
and the basis for them—of subordinates to whom authority
was delegated subject to these policymakers’ review and
approval; or (5) the failure to adequately train or supervise
employees, so long as that failure results from deliberate
indifference to the injuries that may be caused.
After establishing a municipal policy or custom, a plaintiff must
demonstrate a direct causal link between the policy or custom and the
injury alleged. Where a plaintiff claims that the municipality has not
directly inflicted an injury, but nonetheless has caused an employee to
do so, rigorous standards of culpability and causation must be applied
to ensure that the municipality is not held liable solely for the actions
of its employee. The causation element is applied with especial rigor
when the municipal policy or practice is itself not unconstitutional, for
example, when the municipal liability claim is based upon inadequate
training, supervision, and deficiencies in hiring.
Finally, at least for claims of inadequate hiring, training, or other
supervisory practices, a plaintiff must demonstrate that the municipal
action was taken with deliberate indifference as to its known or obvious
consequences. Deliberate indifference is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious
consequence of his action, as a less stringent standard of fault for a
failure-to-train claim would result in de facto respondeat superior
liability on municipalities. The deliberate indifference standard may be
satisfied when the municipality has actual or constructive notice that its
action or failure to act is substantially certain to result in a constitutional
violation, and it consciously or deliberately chooses to disregard the
risk of harm. In most instances, notice can be established by proving
the existence of a pattern of tortious conduct. Deliberate indifference
may be found absent a pattern of unconstitutional behavior only in a
narrow range of circumstances where a violation of federal rights is a
highly predictable or plainly obvious consequence of a municipality's
action or inaction.
Waller, 932 F.3d 1283-1284 (alterations, citations and quotation marks omitted).
With this legal background in mind, the court considers Phelps’ alleged theory
of municipal liability—failure to adequately train and supervise.1
The Tenth Circuit treats allegations of failure to train and failure to supervise
the “same way.” Whitewater v. Goss, 192 Fed. Appx. 794, 797 (10th Cir. 2006)
(unpublished decision cited as persuasive pursuant to 10th Cir. R. 32.1(A)). Only
where a municipality’s failure to train or supervise employees evidences a
“deliberate indifference to the rights of its inhabitants” can the failure to train or
supervise be considered a “policy or custom that is actionable under § 1983.” See,
City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal quotations marks
“Deliberate indifference requires proof that a municipal actor disregarded a
known or obvious consequence of his action.” George, on behalf of Bradshaw v.
Beaver County, by and through the Beaver County Board of Commissioners, 32 F.4th
1246, 1253 (10th Cir. 2022) (citation omitted). As stated, deliberate indifference may
be established by showing that the municipality had “‘actual or constructive notice
that its action or failure to act is substantially certain to result in a constitutional
In the complaint, Phelps specifically alleges “[o]n information and belief, the Town/DPD failed
to adequately train and supervise its officers, including Officer Holliman, with respect to, inter
alia: use of force, de-escalation, use of force continuum, appropriate use of force in a correctional
setting, use of force on a citizen/inmate in handcuffs and use of force on individuals who are
injured or otherwise impaired.” Doc. no. 1, ¶ 29; see also, ¶ 40.
violation, and it consciously or deliberately chooses to disregard the risk of harm.’”
Waller, 932 F.3d at 1284 (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th
Cir. 1998)). Notice can be established by “proving the existence of a pattern of
tortious conduct.” Id. Absent a pattern of unconstitutional behavior, deliberate
indifference may be found only in a “‘narrow range of circumstances’ where ‘a
violation of federal rights is a highly predictable or plainly obvious consequence of
a municipality’s action or inaction.’” Id. (quoting Barney, 143 F.3d at 1307-08)
(other citation and quotation marks omitted).
Phelps has not alleged any facts to plausibly support an inference that the
Town or the DBD acted with deliberate indifference. Specifically, there is an
absence of factual allegations establishing a pattern of similar constitutional
violations that occurred prior to the alleged incidents with Holliman. See, Connick
v. Thompson, 563 U.S. 51, 62 (2011) (“A pattern of similar constitutional violations
by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate
indifference for purposes of failure to train.”).
Further, Phelps has not alleged sufficient facts for this case to fall within the
“narrow range of circumstances,” justifying a finding of deliberate indifference
absent a pattern of similar constitutional violations. See, Barney, 143 F.3d at
1307-08. The facts alleged are inadequate to plausibly support an inference that the
alleged conduct by Holliman was a “highly predictable” or “plainly obvious”
consequence of the alleged failure to train or supervise by the Town or the DPD.
Waller, 932 F.3d at 1284. And in the court’s view, the conduct alleged in the
complaint does not fall within the “ambiguous ‘gray area’” about which police
officers, such as Holliman, would obviously need training or supervision to know
how to handle the situations at issue correctly. Id. at 1288.
In sum, the court concludes that Phelps has failed to allege a plausible § 1983
municipal liability claim based on the failure to adequately train or supervise theory
of liability. Consequently, the court will dismiss without prejudice Phelps’ § 1983
municipal liability claim against the Town.2
For the reasons stated, Defendant Town of Dibble’s Partial Motion to Dismiss
and Brief in Support on Plaintiff’s Claim of Municipal Liability (doc. no. 5) is
Plaintiff’s 42 U.S.C. § 1983 municipal liability claim against
defendant Town of Dibble, Oklahoma, is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 14th day of November, 2023.
Phelps’ state law negligence claim against the Town, which has not been challenged under Rule
12(b)(6), remains pending.
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