Harper v. Tirello

Decision Date19 June 2018
Docket NumberCase No. 16-CV-0121-CVE-FHM
PartiesDUANE HARPER, Plaintiff, v. NICHOLAS TIRELLO, Officer, in his individual capacity; JAMES C. PIRTLE, Sgt., in his individual capacity; DAVID J. OAKES, D.O., in his individual capacity; SEBASTIAN OTALVARO, D.O., in his individual capacity, Defendants.
CourtU.S. District Court — Northern District of Oklahoma

In this civil rights action, plaintiff Duane Harper claims that on February 9, 2015, defendants Sergeant James Pirtle, Detention Officer Sebastian Otalvaro, Detention Officer David Oakes, and Deputy Nicholas Tirello violated his Fourteenth Amendment right to be free from the use of excessive force while he was detained in the David L. Moss Criminal Justice Center ("Tulsa County Jail") on alleged probation violations. Before the Court is defendants' motion for summary judgment (Dkt. # 109). Harper filed a response (Dkt. # 114), and defendants filed a reply (Dkt. # 121). For the reasons discussed below, the Court finds defendants are entitled to qualified immunity. Therefore, the Court shall grant defendants' motion for summary judgment, denyHarper's request for summary judgment,2 and declare moot defendants' motion to strike (Dkt. # 110) and motion in limine (Dkt. # 111).


The following facts are either undisputed or viewed in the light most favorable to Harper.3 On January 7, 2015, Harper was arrested on outstanding felony warrants in two Tulsa County District Court cases, Case Nos. CF-2013-2465 and CF-2013-2140A, and booked into the Tulsa County Jail. Dkt. # 109-1, at 2-3.4 Id. at 2. During the booking process, the intake officer observedno visible signs of injury or trauma and no physical handicaps. Dkt. # 109-2, at 2. However, Harper answered "yes" in response to the following questions: "Are you injured or currently under psychiatric or a general Doctor's Care?" and "Are you currently taking any prescription medications." Id. When Harper was booked into jail, he received a copy of an inmate handbook which outlined his expected conduct, rules, discipline, right to hearings, classification level and housing assignments. Dkt. # 109-3.

The inmate housing history sheet reflects that, on January 16, 2015, Harper refused to go to "max pod" and threatened to commit suicide. Dkt. # 109-4, at 3. Notes corresponding to the January 16, 2015 entry further reflect that Harper was "a known issue in the jail and has prevous [sic] assaultive felonies, one on a detention officer," and "has mental health issues and poses an increased threat to officers and other inmates."5 Id. Harper was placed in a segregated cell and, several days later, was moved to a mental health cell. Id. at 2-3. On January 28, 2015, Harper was"cleared from mental health" and returned to general population. Id. at 2. Later that evening, Harper was involved in a physical altercation with other inmates. Dkt. # 109-5, at 2-3. After the altercation, Harper was examined in the medical unit and cleared for confinement in administrative segregation. Id. at 8. During the examination, the nurse observed Harper had facial injuries but was "ambulatory" and reported that Harper "denied other areas of injury." Dkt. # 109-15, at 2. Shortly after the examination, Harper reported to the nurse that he also hurt his right knee when he slipped and fell near the shower immediately before the altercation. Id. As a result of the altercation, Harper was placed in administrative segregation on January 29, 2015. Dkt. # 109-4, at 2. The next day, Harper was moved to a cell in the J-14 pod.6 Id.

On February 1, 2015, Harper submitted a request through the jail's kiosk message system. Dkt. # 114-4, at 7. Specifically, he requested to be seen by a nurse or doctor for a physical so he could start a job. Id. The next day, Harper received a response indicating he had a physical on January 19, 2015, and was "not cleared for work." Id. Later that day, Harper asked why he was not cleared for work and stated, "My body moves fine and I feel great can you please tell me what the reason is that I can [sic] work a job?" Id. Medical records submitted by Harper and relevant to his physical condition at the time of the alleged excessive-force incident reflect that he was treated in 2009 and 2010 for significant osteoarthritis in his right knee and right shoulder and that he is diabetic. Dkt. # 100-3, at 3, 8.7

On the morning of February 9, 2015, Harper was in the food line and became upset when Detention Officer Megan Palmer took the cellophane off his food tray. Dkt. # 109-7, at 3. Harper threatened to, and ultimately did, throw his food tray on the ground near Palmer's feet. Id. Palmer called for assistance and told the pod to lock down; Harper walked away to his jail cell. Id.

Defendants responded to Palmer's call for assistance. Dkt. # 109-8 (Pirtle Affidavit), at 2; Dkt. # 109-9 (Otalvaro Affidavit), at 2; Dkt. # 109-10 (Oakes Affidavit), at 2; Dkt. # 109-11 (Tirello Affidavit), at 2. Tirello began locking down the J-14 pod and getting inmates into their cells. Dkt.# 109-11, at 2. Pirtle, a supervisor, decided Harper should be restrained and placed in administrative segregation based on Harper's interaction with Palmer. Dkt. # 109-8, at 2. Oakes was the first to arrive at Harper's cell door. Dkt. # 109-10, at 2. Oakes ordered Harper to lay down on the ground. Id. According to Oakes, Harper "shook his head 'no' and refused to comply." Id. Pirtle joined Oakes outside the door of Harper's cell, followed shortly thereafter by Otalvaro. Dkt. # 109-8, at 2; Dkt. # 109-9, at 2. Pirtle unlocked the cell door, and Oakes opened the door. Dkt. # 109-8, at 3. Pirtle ordered Harper to get on the ground two more times, but Harper did not comply. Id.; Dkt. # 109-9, at 2; Dkt. # 109-10, at 2. Instead, Harper, who was sitting on his bed, "shook his head from side to side and refused to comply."8 Dkt. # 109-8, at 3; Dkt. # 109-9, at 2; Dkt. # 109-10, at 2. Tirello headed in Pirtle's direction when he heard Pirtle ordering Harper to the ground. Dkt. # 109-11, at 2.

Before Tirello arrived, Pirtle presented his Taser and twice ordered Harper to get on the ground; Harper did not comply. Dkt. # 109-8, at 3; Dkt. # 109-9, at 2; Dkt. # 109-10, at 2. Pirtle then deployed his Taser and the cartridge probes contacted Harper, causing him to fall to theground.9 Dkt. # 109-8, at 3; Dkt. # 109-9, at 2; Dkt. # 109-10, at 3. Tirello arrived at Harper's cell just as Pirtle deployed his Taser. Dkt. # 109-11, at 2. After the Taser's five-second cycle ended, Tirello, Oakes, and Otalvaro entered Harper's cell, removed the Taser's probes, and placed him in handcuffs. Dkt. # 109-8, at 3; Dkt. # 109-12, at 2. Tirello and Oakes then escorted Harper to the medical unit for a physical examination. Dkt. # 109-10, at 3; Dkt. # 109-11, at 2. Nurse Jessica Mobley examined Harper and cleared him for confinement in administrative segregation. Dkt. # 109-13, at 2. Although Harper complained of shoulder pain, Mobley did not find any apparent injuries during the examination. Id.; Dkt. # 109-6, at 2; Dkt. # 109-15, at 11-12. Following the examination, Harper was placed in administrative segregation. Dkt. # 109-8, at 4.


Summary judgment is appropriate "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, 322 (1986). Conversely, "summary judgment will not lie" if there exists a genuine dispute as to any material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and a fact is material when it "might affect the outcome of the suit under the governing [substantive] law." Id. At the summary-judgment stage, the court's task "is not 'to weigh the evidence and determine the truth of the matter but to determine whether thereis a genuine issue for trial.'" Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249). In applying the summary-judgment standard, the court "view[s] the evidence and the reasonable inferences to be drawn from the evidence in the light most favorable to the nonmoving party." Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011)). But the Court is not required to adopt plaintiff's version of the facts if that version lacks record support, Thomson, 584 F.3d at 1325, or is "blatantly contradicted" by the record, Scott v. Harris, 550 U.S. 372, 380 (2007). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). Consistent with the plain language of Rule 56(a), the movant bears the ultimate burden to show there are no genuine issues for the jury to resolve and that the movant is entitled to judgment as a matter of law. Thomson, 584 F.3d at 1326.

However, when a defendant moves for summary judgment on the basis of qualified immunity, "[t]he plaintiff first must shoulder a heavy two-part burden." Id. at 1325. In determining whether plaintiff has met his or her burden to show "(1) that defendant violated a constitutional right and (2) that the right was clearly established, ordinarily courts must 'adopt' plaintiff's 'version of the facts.'" Id. (quoting Scott, 550 U.S. at 380). Nonetheless, as discussed, "a plaintiff's version of the facts must find support in the record" at the summary-judgment stage. Id. And the court need not adopt plaintiff's version of the facts if that version is "'so utterly discredited by the record that no reasonable jury could have believed' it." Id. (quoting Scott, 550 U.S. at 380). The court has...

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