Clark v. Colbert

• Decision Date: 17 July 2018
• Docket Number: No. 17-7046,17-7046
• Citation: 895 F.3d 1258
• Parties: Gary CLARK, Plaintiff-Appellant, v. Robert COLBERT, in his official and individual capacity as Sheriff of Wagoner County, Oklahoma; Wagoner County Board of County Commissioners; Dustin Dorr, in his individual capacity; and Vicki Holland, in her individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

895 F.3d 1258

Gary CLARK, Plaintiff-Appellant,

v.Robert COLBERT, in his official and individual capacity as Sheriff of Wagoner County, Oklahoma; Wagoner County Board of County Commissioners; Dustin Dorr, in his individual capacity; and Vicki Holland, in her individual capacity, Defendants-Appellees.

No. 17-7046

United States Court of Appeals, Tenth Circuit.

Filed July 17, 2018

J. Spencer Bryan (Steven J. Terrill with him on the briefs), Bryan & Terrill Law, PLLC, Tulsa, Oklahoma, for Appellant.

Stephen L. Geries, Collins Zorn & Wagner, P.C., Oklahoma City, Oklahoma, for Appellees Board of County Commissioners of the County of Wagoner and Vicki Holland.

Randall J. Wood (Robert S. Lafferrandre and Jessica L. Dark with him on the brief), Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Appellee Robert Colbert.

Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.

TYMKOVICH, Chief Judge.

This case involves an encounter between law enforcement and a schizophrenic individual suffering a psychotic episode. Officers from the Wagoner County Sheriff's Department responded to a call from Gary Clark's brother, who was having troubling restraining him. The Sheriff's Department, in turn, requested help from the neighboring Broken Arrow Police Department. The Broken Arrow officers tried to subdue Clark through nonlethal means. Those means failed. The officers thus resorted to lethal force, shooting Clark as he charged them with a large kitchen knife. Clark ultimately survived his gunshot wounds

, but still has not fully recovered.

Clark now brings this lawsuit claiming numerous violations of his constitutional, federal-statutory, and state-common-law rights. As relevant here, the district court granted summary judgment to the Wagoner County Board of Commissioners, Wagoner County Sheriff Robert Colbert, and former Wagoner County Jail Nurse Vicki Holland on Clark's claims against them.

We affirm. Given the undisputed facts, a reasonable jury could not find the officers violated Clark's Fourth Amendment right to be free from excessive force. In addition, Clark has failed to adequately brief issues necessary to justify reversal on his Oklahoma-tort and Americans with Disabilities Act (ADA) claims. Finally, Clark has not marshaled evidence sufficient to prove he received constitutionally inadequate medical care while incarcerated.

I. Background

We recount the facts in greater detail as they relate to our analyses of the specific claims at issue. In broad strokes, however, this lawsuit arises from the arrest and detention of Gary Clark. Clark suffers from schizophrenia

. His brother helps him manage his illness. As part of this arrangement, Clark lives in a small cottage on his brother's property in Wagoner County, Oklahoma. On August 18, 2014, Clark's brother went to check on Clark in the cottage. Caught in the midst of a psychotic episode, Clark lunged at his brother with a large kitchen knife, causing a small cut. Clark's brother called the Sheriff's Department. In the ensuing confrontation between Clark and local law enforcement, the officers used progressively severe tactics to secure Clark's arrest. This culminated in the officers shooting Clark as he charged them with the knife. Clark was taken to the hospital for emergency care. He later received ongoing medical attention as he recovered from his wounds in the Wagoner County Jail.

Following his release, Clark sued. He raised numerous claims stemming from his arrest and incarceration, five of which relate to this appeal. First , Clark alleged Wagoner County Sheriff Robert Colbert—in both his personal and official capacities—violated Clark's Fourth Amendment right against unreasonable seizures. Second , Clark claimed a right to recover against the Wagoner County Board of Commissioners under Oklahoma tort law for the same police conduct. Third , Clark claimed entitlement to relief from the County Board under the ADA for the Board's alleged failure to properly train its officers to accommodate mentally ill arrestees. Finally , Clark claimed a right to recover from Nurse Practitioner Vicki Holland for her allegedly inadequate treatment of his injuries in the Wagoner County Jail.

II. Analysis

Clark contends the district court erred in granting summary judgment on his claims of excessive force, Oklahoma tort liability, ADA liability, and inadequate medical treatment.

We review district court grants of summary judgment de novo. White v. York Int'l Corp. , 45 F.3d 357, 360 (10th Cir. 1995). In so doing, we ask the same question the district court asked: Has discovery yielded a "genuine dispute" of "material fact" or is the moving party "entitled to judgment" on the claim at issue without any need to weigh evidence? Fed. R. Civ. P. 56(a) ; see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute arises where the available evidence would allow a rational jury to accept either party's allegation of a particular fact. See Tabor v. Hilti, Inc. , 703 F.3d 1206, 1215 (10th Cir. 2013). But only facts that "could have an effect on the outcome" of a claim qualify as "material." Id. (quoting EEOC v. Horizon/CMS Healthcare Corp. , 220 F.3d 1184, 1190 (10th Cir. 2000) ). We construe all evidence and draw all inferences in the nonmovant's favor at this stage. See, e.g. , EagleMed LLC v. Cox , 868 F.3d 893, 899 (10th Cir. 2017).

With that standard of review in mind, we turn to Clark's claims.

A. The Excessive Force Claim

The Fourth Amendment prohibits state and federal governments from making "unreasonable ... seizures." U.S. Const. amend. IV ; see Terry v. Ohio , 392 U.S. 1, 8, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (applying the Fourth Amendment unreasonable seizure provision to the states through the Fourteenth Amendment). When state police violate this guarantee by using excessive force, federal law provides a right of action to the victim. See 42 U.S.C. § 1983 ; Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ; see also Cordova v. Aragon , 569 F.3d 1183, 1188 (10th Cir. 2009) (applying Graham ).

But an excessive force claim must clear the Fourth Amendment's " ‘objective reasonableness’ standard." Cordova , 569 F.3d at 1188. That standard asks whether the police employed objectively reasonable force given the totality of the circumstances. See Thomson v. Salt Lake Cty. , 584 F.3d 1304, 1313 (10th Cir. 2009). We apply this test with an eye toward "balancing ... ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake.’ " Graham , 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner , 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ).

We look to the specific circumstances of the confrontation in evaluating these interests. See, e.g. , Kisela v. Hughes , ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (per curiam); Estate of Larsen v. Murr , 511 F.3d 1255, 1260 (10th Cir. 2008) ; Sevier v. City of Lawrence , 60 F.3d 695, 699 (10th Cir. 1995). And the Supreme Court has itself highlighted the importance of (1) "the severity of the crime at issue," (2) "whether the suspect poses an immediate threat to the safety of the officers or others," and (3) "whether he is actively resisting arrest or attempting to evade arrest by flight." Graham , 490 U.S. at 396, 109 S.Ct. 1865. Nevertheless, the test is ultimately holistic and open-ended. See Cty. of L.A. v. Mendez , ––– U.S. ––––, 137 S.Ct. 1539, 1546, 198 L.Ed.2d 52 (2017) ; Tenorio v. Pitzer , 802 F.3d 1160, 1164 (10th Cir. 2015). Importantly, though, the fact-finder must adopt "the perspective of a reasonable officer on the scene, rather than [assuming] the 20/20 vision of hindsight." Graham , 490 U.S. at 396, 109 S.Ct. 1865.

Clark has sued Sheriff Colbert in both his personal and official capacities for the police officers' use of force in this case. Clark's failure to prove an underlying constitutional violation, however, justifies summary judgment on both claims. See, e.g. , Porro v. Barnes , 624 F.3d 1322, 1325, 1328 (10th Cir. 2010).

The undisputed facts show that no Fourth Amendment violation occurred. On the day of the incident, the Wagoner County Sheriff's Department responded to Clark's brother's call for help first. Sheriff's Deputies Robbie Lively and Jason Hathcoat arrived at the Clark residence just before 4:00 p.m. They confronted an irritated Clark standing on the front porch of his cottage with a long kitchen knife in hand. Their attempts to communicate with Clark failed. Rather than submit to arrest, Clark made obscene and threatening gestures toward the officers. The Wagoner County deputies did not use force against Clark at this time. Instead, after the arrival of Major Dustin Dorr, the Wagoner County force requested assistance from the Broken Arrow Police Department.

The Broken Arrow officers arrived roughly ten minutes later. Upon their arrival, the Broken Arrow officers began planning and implementing an arrest strategy. As requested, they had brought with them an array of nonlethal resources for accomplishing arrests. Broken Arrow Captain Patrick DuFriend decided the officers would first fire on Clark with a pepperball launcher. This device uses compressed gas to propel small, round projectiles that burst open on impact, releasing a pepper-spray-like irritant from a distance. See Nelson v. City of Davis , 709 F.Supp.2d 978, 982 (E.D. Cal. 2010), aff'd , 685 F.3d 867 (9th Cir. 2012). In the event the pepperballs provoked Clark rather than subduing him, Captain DuFriend directed the officers to use their tasers. The officers also had firearms available for use if necessary.

At Captain DuFriend's direction, the officers formed into a half-horseshoe around Clark's front porch. They again commanded Clark to drop his knife and submit to arrest. When Clark did not comply, Captain DuFriend directed...