Denton v. Yancey

• Decision Date: 23 October 2015
• Docket Number: Case No. 13–CV–709–TCK–TLW.
• Citation: 142 F.Supp.3d 1174
• Parties: Mike DENTON, Plaintiff, v. Dan YANCEY, individually and in his official capacity; Rodney Ray, individually and in his official capacity; and City of Owasso, Oklahoma, a municipal corporation, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

142 F.Supp.3d 1174

Mike DENTON, Plaintiff,

v.Dan YANCEY, individually and in his official capacity; Rodney Ray, individually and in his official capacity; and City of Owasso, Oklahoma, a municipal corporation, Defendants.

Case No. 13–CV–709–TCK–TLW.

United States District Court, N.D. Oklahoma.

Signed Oct. 23, 2015.

James Patrick Hunt, Tulsa, OK, for Plaintiff.

Keith A. Wilkes, Newton O'Connor Turner & Ketchum P.C., Tulsa, OK, for Defendants.

OPINION AND ORDER

TERENCE C. KERN

, District Judge.

Before the Court are Defendants' Motion for Summary Judgment and Brief in Support (Doc. 40) and Plaintiff's Motion to Strike Portions of Defendants' Reply in Support of Summary Judgment (Doc. 49).

I. Background

Plaintiff Mike Denton, a police officer for the City of Owasso, Oklahoma ("City") filed this action against the City; the police chief, Dan Yancey ("Yancey"); and the city manager, Rodney Ray ("Ray") asserting claims under 42 U.S.C. §§ 1983

and 1981. Specifically, Plaintiff alleges three claims: (1) First Amendment retaliation claim based on his speech; (2) First Amendment retaliation claim based on his right of association; and (3) Fourteenth Amendment due process claim.

A. The Incident

For purposes of summary judgment, the following facts are either undisputed or taken in a light most favorable to Plaintiff. Plaintiff has been employed by the City as a police officer since February 1994. On June 30, 2011, Plaintiff and fellow officers Jonathan Foyil ("Foyil") and H.D. Pitt ("Pitt") were involved in the arrest of Bryan Spradlin ("Spradlin") (the "Incident"). While Plaintiff and Foyil were escorting Spradlin into the police station, Spradlin allowed his body to go limp, causing Spradlin to fall forward. Foyil and Plaintiff stumbled forward over Spradlin. Video footage shows Plaintiff step on Spradlin's head before the officers picked Spradlin up off the ground. Once inside the station, video footage shows Plaintiff lifting Spradlin's handcuffed arms up and over the back of his head and purposefully striking Spradlin in the face three times with the back of his arm while escorting Spradlin through a sally-port. During the shift, Foyil told Pitt—who was also Foyil's supervisor—that he was concerned about Plaintiff's strikes to Spradlin's face. Pitt shared Foyil's concerns with Plaintiff, and Pitt and Plaintiff discussed the Incident. Plaintiff told Pitt he struck Spradlin in the face because he thought Spradlin was about to spit on him.

B. The Investigation

On July 26, 2011, Officer Foyil sent an e-mail to Pitt regarding the Incident indicating that "by policy, [he] was required to notify [his] immediate supervisor" and wanted to "have a trail that [he] fulfilled his responsibilities by informing" his supervisor. (Ex. 8 to Defs.' Mot. for Summ. J.) Pitt forwarded the e-mail to Captain Tracy Anderson, who forwarded the e-mail to Yancey. Upon receiving the e-mail, Yancey reviewed the video footage and initiated an investigation into the Incident to determine whether Plaintiff's actions violated the City's Use of Force and Weapons policy.

Yancey engaged an independent investigator, Captain Greg Sipes of the Broken Arrow Police Department, to investigate the Incident. On September 21, 2011, Captain Sipes issued a written report concluding that "some or all of the force applied in this incident could be ruled excessive." (Ex. 11 to Defs.' Mot. for Summ. J.) On October 3, 2011, Yancey signed a City of Owasso Proposed Disciplinary Action Notice, recommending Plaintiff's termination. A variety of interim disciplinary hearings were held before Ray approved a City of Owasso Disciplinary Action Approval, recommending Plaintiff's termination, on November 4, 2011.

C. The Arbitration

Plaintiff and Owasso Fraternal Order of Police Lodge 149 ("Union") subsequently filed a grievance, claiming there was no just cause for Plaintiff's termination. An arbitration hearing was held in March 2012, and the arbitrator issued his award on June 20, 2012. The arbitrator ultimately concluded that "a preponderance of the evidence does establish that [Plaintiff's] misconduct during the transport of [Spradlin] was unnecessary and unreasonable, but was not excessive force within the meaning of existing case law. OPD's action of termination shall be voided and discipline will be reduced to a written reprimand." (Ex. 18 to Defs.' Mot. for Summ. J. at 20.) The City later appealed the arbitration decision in the District Court of Tulsa County. The trial court vacated the arbitration award as contrary to public policy, but such ruling was ultimately reversed by the Oklahoma Court of Civil Appeals. Therefore, the arbitrator's decision was ultimately upheld on appeal, and Plaintiff remains employed as a police officer by the City today.

D. Release of Video Footage

In December 2011, the Tulsa World filed suit against the City in the District Court of Tulsa County to obtain video of the Incident, after the City refused to provide the footage pursuant to the Oklahoma Open Records Act. The City defended the lawsuit until July 10, 2012, but then voluntarily produced the video to the Tulsa World. Plaintiff alleges the release of the video footage coincided with the arbitration award in Plaintiff's favor and was a retaliatory act by the City. Defendants argue that the video was released at that time because the arbitration had concluded, the City had obtained a release of liability from Spradlin, and it became apparent that the video footage qualified as an open record to which the Tulsa World was entitled.

II. Standard of Review

Summary judgment is proper only if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)

. The moving party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir.2006). The Court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking to overcome a motion for summary judgment may not "rest on mere allegations" in its complaint but must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The party seeking to overcome a motion for summary judgment must also make a showing sufficient to establish the existence of those elements essential to that party's case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323–33, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)

.

III. Plaintiff's Motion to Strike

Plaintiff filed a Motion to Strike Portions of Defendants' Reply in Support of Summary Judgment (Doc. 49), requesting the Court strike the portions of Defendants' reply addressing new allegations of excessive force against Plaintiff that arose earlier this year. Defendants did not respond to Plaintiff's motion. The Court finds the new allegations to be wholly irrelevant to the claims raised by Plaintiff in this proceeding, and Plaintiff's Motion to Strike (Doc. 49) is granted.

IV. Defendants' Motion for Summary Judgment

A. First Amendment Retaliation—Speech

Plaintiff alleges Defendants retaliated against him for his speech at the arbitration when the City released the video footage of the Incident to the Tulsa World. The Supreme Court has long recognized that "the government's interest in regulating the speech of its employees differs significantly from its interest in regulating the speech of the public in general." Deschenie v. Bd. of Educ., 473 F.3d 1271, 1276 (10th Cir.2007)

. When a citizen accepts public employment, " ‘the citizen by necessity must accept certain limitations on his or her freedom.’ " Brammer–Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th Cir.2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ). When faced with a First Amendment claim by a public employee, "courts must balance the First Amendment interests of that employee, speaking as a concerned citizen, with the government's interests in promoting the efficiency of the public services it performs through its employees." Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227 (10th Cir.2014). To balance these interests, courts utilize a five-part test based on the Supreme Court cases of Garcetti and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See Brammer–Hoelter, 492 F.3d at 1202–03. Under the Garcetti/Pickering test, a First Amendment retaliation claim has five elements:

(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.

Cypert v. Ind. Sch. Dist. No. I–050 of Osage Cnty., 661 F.3d 477 (10th Cir.2011)

. "The first three steps are to be resolved by the district court, while the last two are ordinarily for the trier of fact." Brammer–Hoelter, 492 F.3d at 1202–03. For purposes of this Opinion and Order only, the Court assumes Plaintiff can satisfy the first three elements of the Garcetti/Pickering analysis and proceeds to the fourth element.

1. Speech at Issue

Prior to addressing the fourth element, some discussion of the speech underlying Plaintiff's claim is necessary. In his Complaint, Plaintiff alleges only that "[a] substantial and motivating factor in Defendants' retaliation against Plaintiff were statements he made that were protected by the First Amendment Right of Free Speech." (Compl. ¶ 28.) As a result, some ambiguity exists regarding the exact nature of such speech. In their motion, Defendants cite six instances of speech which they believe underlie Plaintiff's retaliation claim....