Merrill v. Seagraves et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
RYAN TYLER MERRILL, 	)
)
Plaintiff, 	)
)
v. 	)
) 	Case No. CIV-22-07-RAW-GLJ
JONATHAN SEAGRAVES, 	)
GREG FELL, CITY OF BROKEN 	)
ARROW, and BRANDON 	)
BERRYHILL, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This case arises from an encounter between Ryan Tyler Merrill (“Plaintiff”), and
Broken Arrow Police Department officers Jonathan Seagraves and Greg Fell. Plaintiff sued
Defendants Jonathan Seagraves and Greg Fell individually, Brandon Berryhill in his
official capacity as the Broken Arrow Police Chief, as well as the City of Broken Arrow
(“City”). Plaintiff alleges claims under 42 U.S.C. § 1983 and the Fourth and Fourteenth
Amendments to the United States Constitution. On October 14, 2022, the Court referred
this case to the undersigned Magistrate Judge for all further proceedings in accordance with
jurisdiction pursuant to 28 U.S.C. § 636. 	See Docket No. 45. 	For the reasons set forth
below, the Defendant Brandon Berryhill’s Motion to Dismiss [Docket No. 28] should be
GRANTED, and Defendant City’s Motion to Dismiss [Docket No. 30] should be
GRANTED IN PART and DENIED IN PART.
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 1 of 19

2
BACKGROUND
As relevant to this motion, Plaintiff alleges in his Amended Complaint that he was
driving on December 3, 2020, in Broken Arrow, Oklahoma when he was pulled over by
Seagraves. See Docket No. 24, p. 3, ¶¶ 10-11. Seagraves was not wearing a mask when he
approached the vehicle, so Plaintiff only partially rolled down his window to pass his
license and insurance verification out of concern regarding the high level of COVID-19
at the time. Id. Seagraves went back to his car, prepared a citation, and returned to the
vehicle where Plaintiff again only partially rolled down his window to receive a citation
for an expired tag. Seagraves demanded he fully roll down the window, but Plaintiff
declined to roll it further than he deemed necessary to receive and sign the citation.
Seagraves then returned to his vehicle without giving further instructions. Id., p. 4, ¶ 12.
It is not clear from the Amended Complaint whether Seagraves attempted to pass the
citation through the partially open window or whether Plaintiff signed the citation before
Seagraves returned to his vehicle.
Plaintiff next stated that after Seagraves returned to his patrol vehicle, he waited
“several more minutes” then drove within the speed limit toward his stepbrother’s house
while being followed by Seagraves. During the drive, Seagraves was also joined by other
officers, including Fell. Upon arriving, Plaintiff states that he “ran up on a porch where he
had been working,” turned to face the approaching officers, and held his hands in the air
with his phone in his right hand. He asserts that he had no weapon and did not act in an
aggressive manner. Id., p. 4, ¶¶ 13-14. Both Seagraves and Fell approached Plaintiff with
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 2 of 19

3
their firearms pointed at him while he pleaded with the officers not to kill him. Id., p. 5, ¶
15. 	Without 	warning, 	Seagraves 	drew 	his 	Taser 	and 	shot 	Plaintiff 	in 	the 	chest,
incapacitating him and causing him to fall face down. Without warning, Seagraves then
discharged the Taser a second time, hitting Plaintiff in the back. Id., p. 5, ¶¶ 17-19. EMSA
personnel responded to the scene, but Seagraves and Fell refused transport and instead
took him to the Broken Arrow City jail before transporting him to St. John Medical Center
in Tulsa, Oklahoma, where he was admitted in restraints. Id., ¶¶ 22-23.
PROCEDURAL HISTORY
Plaintiff filed the present case in this Court on January 4, 2022, against the above-
named Defendants. See Docket No. 2. Fell, Berryhill, and City each filed a Motion to
Dismiss while Seagraves filed an Answer. See Docket Nos. 4-5, 9-10. At the invitation of
the court, Plaintiff filed an Amended Complaint on May 16, 2022. See Docket Nos. 23, 25.
In his Amended Complaint, Plaintiff brings a claim against Berryhill and City through 42
U.S.C. § 1983 under the Fourth and Fourteenth Amendments to the U.S. Constitution,
alleging municipal liability. He also alleges unconstitutional use of excessive force by
Seagraves and failure to intervene by Fell. Fell, Berryhill, and City again each filed a
Motion to Dismiss while Defendant Seagraves filed an Answer to the Amended Complaint.
See Docket Nos. 28-31. The undersigned Magistrate Judge now addresses the motions to
dismiss by Defendants Berryhill and City as to all claims against them.1
1 The undersigned Magistrate Judge will address Defendant Fell’s Motions to Dismiss in a separate
Report and Recommendation. See Docket No. 47.
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 3 of 19

4
ANALYSIS
I. 	Applicable Standards
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
required, but the statement of the claim under Rule 8(a)(2) must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a
cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s]
devoid of further factual enhancement … To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face. 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.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-557, 570)
(internal quotation marks omitted). “While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679.
“While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in
her complaint, the elements of each alleged cause of action help to determine whether
Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012). This requires a determination as to “whether the complaint sufficiently
alleges facts supporting all the elements necessary to establish an entitlement to relief under
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 4 of 19

5
the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)).
II. 	Berryhill Motion to Dismiss
Berryhill moves to dismiss the claims against him in his official capacity, arguing
they are superfluous given that City is already a named Defendant in the action. “Suing
individual defendants in their official capacities under § 1983. . . is essentially another way
of pleading an action against the county or municipality they represent.” Porro v. Barnes,
624 F.3d 1322, 1328 (10th Cir. 2010). In the present case, Berryhill is sued in his official
capacity as the Chief of Police for the city of Broken Arrow. This is essentially a suit
against City. Id. As the City is already a named Defendant in this case, the suit against
Berryhill is duplicative and the undersigned Magistrate Judge therefore finds that dismissal
of Plaintiff’s claim as to Berryhill is warranted as a matter of judicial economy and
efficiency. See, e.g., Busby v. City of Tulsa, 2012 WL 1867167, at *5 (N.D. Okla. May 22,
2012) (dismissing as superfluous claims against a defendant in their official capacity
because the municipality and real party in interest was already a named defendant).
Accordingly, 	the 	undersigned 	Magistrate 	Judge 	recommends 	Berryhill’s 	Motion 	to
Dismiss be GRANTED.
III. 	City Motion to Dismiss
A claim for municipal liability “requires the plaintiff [to] prove (1) the entity
executed a policy or custom (2) that caused the plaintiff to suffer deprivation of
constitutional or other federal rights.” Cox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015)
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 5 of 19

6
(internal quotations omitted). See also Yarbrough v. City of Kingfisher, 153 F.3d 730, 1998
WL 427122, at *3 (10th Cir. July 14, 1988) (unpublished Table Opinion) (“[A] plaintiff
must show that the municipal action was taken with the requisite degree of culpability and
must demonstrate a direct causal link between the municipal action and the deprivation of
federal rights.”) (quoting Board of County Comm’rs v. Brown, 520 U.S. 397. 404 (1997)).
A municipal policy or custom may take the form of (1) a formal regulation
or policy statement; (2) an informal custom amoun[ting] 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.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quotation
marks and citations omitted). Plaintiff appears to allege municipal liability in his Amended
Complaint based on an alleged failure to train, ratification, and possibly an official policy.
City contends, however, that Plaintiff’s Amended Complaint should be dismissed because
it pleads insufficient facts that are conclusory and represent improper legal conclusions.
A. Failure to Adequately Train or Supervise
“In order to prevail on a claim against a municipality for failure to train its police
officers in the use of force, a Plaintiff must first prove the training was in fact inadequate,
and then satisfy the following requirements: (1) the officers exceeded constitutional
limitations on the use of force; (2) the use of force arose under circumstances that constitute
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 6 of 19

7
a usual and recurring situation with which police officers must deal; (3) the inadequate
training demonstrates a deliberate indifference on the part of the city towards persons with
whom the police officers come into contact, and (4) there is a direct causal link between
the constitutional deprivation and the inadequate training.” Carr v. Castle, 337 F.3d 1221,
1228 (10th Cir. 2003) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
Generally, “[a] pattern of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to
train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). However, it is possible that “the need
for more or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably be said
to have been deliberately indifferent to the need. In that event, the failure to provide proper
training may fairly be said to represent a policy for which the city is responsible, and for
which the city may be held liable if it actually causes injury.” Canton, 489 U.S. at 390.
Importantly, “[a] municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.” Connick, 563 U.S. at 61. Despite these hurdles,
the undersigned Magistrate Judge finds for the reasons discussed below that Plaintiff
sufficiently states a claim for failure to train.
1. 	Violation of the Constitutional Limits on the Use of Force
As to the first element, Plaintiff contends that the facts alleged would establish that
Seagraves used excessive force while arresting him. To state an excessive force claim
‘under the Fourth Amendment, plaintiffs must show both that a ‘seizure’ occurred and that
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 7 of 19

8
the seizure was ‘unreasonable.’” Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010)
(emphasis in original) (quoting Childress v. City of Arapaho, 210 F.3d 1154, 1156 (10th
Cir. 2000)). The Supreme Court stated in Torres v. Madrid that “[t]he application of
physical force to the body of a person with intent to restrain is a seizure even if the person
does not submit and is not subdued.” ––– U.S. ––––, 141 S. Ct. 989, 994, 997-998 (2021)
(“[W]e see no basis for drawing an artificial line between grasping with a hand and other
means of applying physical force to effect an arrest.”). Here, a seizure certainly occurred
when Seagraves deployed the Taser the first time in an attempt to subdue and restrain
Plaintiff.
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “Thus, in an excessive force
inquiry, we ask whether the force used ‘would have been reasonably necessary if the arrest
or the detention were warranted.’” Morris v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012)
(emphasis in original) (quoting Cortez v. McCauley, 478 F.3d 1108, 1126 (10th Cir. 2007)).
This inquiry is objective. See Graham, 490 U.S. at 397 (“[T]he question is whether the
officers' actions are objectively reasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.”) (internal
quotations omitted). An officer does not have to use the least intrusive means, as long as
his conduct was reasonable, which is based on the totality of the circumstances. Thomas,
607 F.3d at 670; Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 8 of 19

9
Because it is based on the totality of circumstances of each case, “[r]easonableness”
does not have a precise test but rather “requires careful attention to the facts and
circumstances of each particular case.” Graham, 490 U.S. at 396. The Supreme Court
outlined three factors that courts are to consider: (1) the severity of the crime for which
the suspect was seized, (2) whether the suspect posed an immediate threat to the safety of
officers or others, and (3) whether the suspect was actively resisting arrest or attempting
to evade arrest by fleeing. Id. Whether a particular use of force was reasonable “must be
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id.
Application of the Graham factors generally favors Plaintiff here. Seagraves
originally initiated a traffic stop of Plaintiff to issue a citation for an expired tag. Plaintiff
alleges he then simply proceeded in the direction of a family member’s home and was
followed by Seagraves. Thus, it is alleged that Plaintiff committed a minor traffic
infraction, as opposed to a crime of violence. See Perea v. Baca, 817 F.3d 1198, 1203
(10th Cir. 2016) (“Although the officers are correct that an officer can effect an arrest for
even a minor infraction, Perea's minor offense—at most—supported the use of minimal
force. Instead, the officers used a taser against Perea ten times in two minutes. Repeated
use of the taser exceeded the minimal force that would be proportional to Perea's crime.”)
(citing Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir.2008) (because detainee had
committed only a petty misdemeanor, “the amount of force used should have been reduced
accordingly”)). See also Est. of Booker v. Gomez, 745 F.3d 405, 424 (10th Cir. 2014)
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 9 of 19

10
(“Under prevailing Tenth Circuit authority, ‘it is excessive to use a Taser to control a target
without having any reason to believe that a lesser amount of force—or a verbal
command—could not exact compliance.’”) (quoting Casey v. City of Federal Heights, 509
F.3d 1278, 1286 (10th Cir. 2007)). As in Perea, the infraction alleged here supports only
minimal use of force at most.
The second and third factors – whether the suspect posed an immediate threat to the
safety of officers or others, and whether the suspect was actively resisting arrest or
attempting to evade arrest by fleeing – likewise generally favor the Plaintiff, as there is no
indication that he posed a threat to the officers or others, or that he was resisting arrest.
Although the Amended Complaint makes it clear that Plaintiff was moving away from
Defendant Seagraves when he ran up on the porch, Plaintiff alleges that Seagraves had
given him “no further instructions” after Seagraves returned to his car. The Amended
Complaint further contains no allegations of any verbal commands given by Seagraves or
Fell after Plaintiff stopped his vehicle, ran up on the porch, and turned around to face
them, and he alleges that he had his hands in the air and repeatedly asked them not to kill
him. It is thus not clear and certainly not alleged that Plaintiff posed a threat to the officers
after he fell face down and was incapacitated after being Tased the first time, see Docket
No. 26, p. 5, ¶ 18, or that he was resisting arrest or attempting to flee at that time. Cf.
Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (“Even if Perea initially posed a
threat to the officers that justified tasering him, the justification disappeared when Perea
was under the officers' control. It is not reasonable for an officer to repeatedly use a taser
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 10 of 19

11
against a subdued arrestee they know to be mentally ill, whose crime is minor, and who
poses no threat to the officers or others. Because the officers repeated use of the taser
cannot be described as reasonable, at least after the point Perea was subdued, the third
Graham factor weighs against the officers.”). The undersigned Magistrate Judge thus finds
that both the Graham factors and the stage of the case support a finding that Plaintiff
sufficiently alleges a constitutional violation in his Amended Complaint. See, e. g., Cook
v. City of Arvada, Colorado, 2021 WL 243451, at *5 (D. Colo. Jan. 25, 2021) (“The
Graham factors and the stage of litigation lean towards a … find[ing] that plaintiff has
sufficiently alleged a constitutional violation under his coordinated use of force theory.”).
2. 	Recurring Situation and Direct Causal Link
Plaintiff next alleges that the circumstances at issue came about from a routine
traffic stop for an expired tag, see Docket No. 25, pp. 3-4, ¶¶ 10-12, which is a recurring
situation commonly confronted by police offers. This satisfies the second element requiring
the use of force to arise in a usual and recurring situation. Moreover, Plaintiff alleges that
deficient training in the use of Tasers was the moving force in both Seagraves’ and Fell’s
actions that day. See id. at 12, ¶ 43. This is sufficient for the fourth, direct causal link,
element at this stage of litigation.
3. 	Deliberate Indifference
The third element, deliberate indifference, is usually established by alleging a
pattern or practice. Connick, 563 U.S. at 61. Ordinarily, to sufficiently allege deliberate
indifference in a failure to train case, the Plaintiff must allege a pattern or practice that
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 11 of 19

12
placed a policymaker, such as Chief Berryhill, on actual or constructive notice that a
particular omission in training caused the constitutional violation in this case. See Connick,
563 U.S. at 62. Here, Plaintiff alleges pervasive misuse of Tasers in the Broken Arrow
Police Department but points to no specific instances of misuse other than the one currently
at issue in this case. See Docket No. 25 p. 13, ¶ 48; see also Coffey v. McKinley Cty., 504
Fed. Appx. 715, 719 (10th Cir. 2012) (finding that one prior incident does not describe a
pattern of violations). The Amended Complaint thus lacks a sufficient allegation of a
pattern or practice. See Iqbal, 556 U.S. at 679.
As previously noted, however, courts have found a “narrow range of circumstances”
where a pattern of similar violations is not necessary. Id. at 61, see also Bryson, 627 F.3d
at 789 (“In a narrow range of circumstances, however, deliberate indifference may be found
absent a pattern of unconstitutional behavior if a violation of federal rights is a highly
predictable or plainly obvious consequence of a municipality’s action or inaction, such as
when a municipality fails to train an employee in specific skills needed to handle recurring
situations, thus presenting an obvious potential for constitutional violations.”) (quoting
Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir. 1998)). The question is therefore
whether the allegations in the Amended Complaint fall within the “narrow range of
circumstances” sufficient to establish a claim for deliberate indifference based on single-
incident liability.
To 	illustrate 	one 	such 	narrow 	circumstance, 	the 	Supreme 	Court 	in 	Canton
hypothesized an example of a city arming a police force with firearms and deploying the
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 12 of 19

13
armed officers into the public to capture fleeing felons, but not training the officers in the
constitutional limitations on the use of deadly force. Canton, 489 U.S. at 390 n.10 (“For
example, city policymakers know to a moral certainty that their police officers will be
required to arrest fleeing felons. The city has armed its officers with firearms, in part to
allow them to accomplish this task. Thus, the need to train officers in the constitutional
limitations on the use of deadly force, can be said to be “so obvious,” that failure to do so
could properly be characterized as “deliberate indifference” to constitutional rights.”)
(citing Tennessee v. Garner, 471 U.S. 1, (1985)). See also Connick, 563 U.S. at 63-64.
(“Armed 	police 	must 	sometimes 	make 	split-second 	decisions 	with 	life-or-death
consequences. . . . And, in the absence of training, there is no way for novice officers to
obtain the legal knowledge they require.”). “Given the known frequency with which police
attempt to arrest fleeing felons and the ‘predictability that an officer lacking specific tools
to handle that situation will violate citizens’ rights,’ the Court theorized that a city’s
decision not to train the officers about constitutional limits on the use of deadly force could
reflect the city’s deliberate indifference to the ‘highly predictable consequence,’ namely,
violations of constitutional rights.” Connick, 563 U.S. at 63-64 (quoting Bd. of Cnty.
Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397 (1997)). In contrast, the Connick
Court found that the mere fact that prosecutors may have difficulty in applying Brady’s
requirements did not make obvious the need for a municipality to provide additional
training in that area. Id. (“The obvious need for specific legal training that was present in
the Canton scenario is absent here,” in the context of training prosecutors).
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 13 of 19

14
In this case, Plaintiff's allegations as a whole, taken as true at this early stage in the
proceeding, are more analogous to the hypothetical outlined in Canton than Connick, as
officers regularly make traffic stops and can expect to deal with persons who refuse to pull
over and flee or otherwise escalate the situation, reflecting an obvious need for specific
training. See Simpson v. Little, 2020 WL 33216, at *6 (N.D. Okla. Jan. 2, 2020) (denying
motion to dismiss municipal liability claim where the plaintiff sufficiently alleged the city
failed to train its officers on “how to make a proper, lawful traffic stop or how to deal with
persons who refuse to pull over for a patrol car.”). See also Osborn v. Meitzen, 2020 WL
3800547, at *3 (E.D. Okla. July 6, 2020) (denying a motion to dismiss a municipal liability
claim where the plaintiff sufficiently alleged deliberate indifference to the predictable
consequence of the use of deadly force when using patrol vehicles as roadblocks);
Leadholm v. City of Com. City, 2017 WL 1862313, at *7 (D. Colo. May 9, 2017) (denying
a motion to dismiss a municipal liability claim and finding that the city’s failure to train
officers in interacting with medically inhibited drivers was more analogous to Canton than
to Connick). The undersigned Magistrate Judge thus finds that the Plaintiff alleges at this
stage a claim that City’s failure to train its officers was the result of deliberate indifference
to the predictable consequence of the use of Tasers in routine misdemeanor arrests. See
Connick, 563 U.S. at 63-64. (noting that the predictability with which officers, in the field
and under pressure, will violate the rights of citizens unless properly trained is so obvious
that the failure to train could reflect a municipality’s deliberate indifference to those
violations). As such, the undersigned Magistrate Judge recommends that City’s Motion to
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 14 of 19

15
Dismiss as to Plaintiff’s claim of municipal liability based on an alleged failure to train be
DENIED.
B. Ratification by Final Policymakers
Next, the undersigned Magistrate Judge addresses any purported ratification claim
Plaintiff may have alleged in his Amended Complaint. Plaintiff has not responded to any
of Defendant’s arguments regarding ratification allegations. Courts routinely deem an issue
“waived” when a party fails to respond to a party’s substantive argument. See, e.g., Rock
Roofing, LLC v. Travelers Cas. & Sur. Co., 413 F. Supp. 3d 1122, 1128 (D.N.M. 2019)
(plaintiff's failure to respond to defendant's argument waived the issue); Zane v. Kramer,
195 F. Supp. 3d 1243, 1256 (W.D. Okla. 2016) (plaintiff waived claim where he did not
respond to argument raised in defendants’ summary judgment motion); Palmer v. Unified
Gov't of Wyandotte Cty./Kan. City, Kan., 72 F. Supp. 2d 1237, 1250–51 (D. Kan. 1999)
(“[T]he court deems plaintiff's failure to respond to an argument raised in defendants’
papers tantamount to an express abandonment of any such claim.”). Because of Plaintiff’s
failure to respond, any ratification claim the Plaintiff may have made in his Amended
Complaint should be considered waived. However, even if Plaintiff had responded, the
allegation would fail for the reasons discussed below.
“A municipality will not be found liable under a ratification theory unless a final
decisionmaker ratifies an employee's specific unconstitutional actions, as well as the basis
for these actions.” Bryson, 627 F.3d at 790. See also City of St. Louis v. Praprotnik, 485
U.S. 112, 127 (1988) (“[W]hen a subordinate's decision is subject to review by the
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 15 of 19

16
municipality's authorized policymakers, they have retained the authority to measure the
official's conduct for conformance with their policies. If the authorized policymakers
approve a subordinate's decision and the basis for it, their ratification would be chargeable
to the municipality because their decision is final.”) (emphasis in original). Because a
municipality cannot be held liable on a respondeat superior theory of liability, see Monell
v. Dept. of Soc. Svcs. of City of New York, 436 U.S. 658, 691 (1978), Plaintiff here “must
identify a policymaker who ratified the officer['s] actions.” Tivis v. City of Colorado
Springs, 2020 WL 1166842, at *5 (D. Colo. March 11, 2020) (citing Moss v. Kopp, 559
F.3d 1155, 1169 (10th Cir. 2009)).
In this case, the Plaintiff alleges that Police Chief Berryhill ratified Seagraves and
Fell’s unconstitutional actions because he found no wrongdoing by the officers after the
incident. Docket No. 25, pp. 9-10, ¶ 34. Such an allegation is insufficient to state a claim
because “[f]ailing to adequately investigate or punish does not count as ratification.” Lynch
v. Board of County Commissioners of Muskogee County, Oklahoma, 786 Fed. Appx. 774,
787 (10th Cir. 2019). “The final policymaker must not only approve the decision, but also
adopt the basis for the decision, and the ratification must be the moving force, or cause, of
the alleged constitutional violation.” Dempsey v. City of Baldwin, 143 Fed. Appx. 976, 986
(10th Cir. 2005) (emphasis added) (citing Paprotnik, 480 U.S. at 127 (“If the authorized
policymakers approve a subordinate's decision and the basis for it, their ratification would
be chargeable to the municipality because their decision is final.”). Any alleged post-act
ratification by Chief Berryhill thus cannot establish a claim for municipal liability under a
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 16 of 19

17
theory of ratification. See, e. g., Estate of Valverde v. Dodge, 2017 WL 1862283, at *10
(D. Colo. May 9, 2017) (“Indeed, because the alleged ratification happened after the
shooting, Plaintiff had already suffered the injury by the time it occurred. Therefore,
Denver's acceptance and praise of Dodge's conduct did not cause Valverde's injury.”). See
also Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009) (“[B]asic principals of linear
time prevent us from seeing how conduct that occurs after the alleged violation could have
somehow caused that violation.”). Moreover, Plaintiff alleges that both Seagraves and Fell
failed to report the use of the taser to their superiors. This allegation, taken as true at this
early stage of litigation, would preclude ratification by City for the simple reason that
Plaintiff alleges City was ignorant of the conduct. The undersigned Magistrate Judge
therefore finds that any claim by Plaintiff against City for municipal liability based on
ratification should be dismissed.
C. Formal Regulation or Policy Statement
There is also some indication that Plaintiff asserts in his Amended Complaint that
City’s use of force and search and seizure policies are constitutionally deficient as
misleading and providing no clear directions. Docket No. 25 pp. 2, 11, 13, ¶¶ 8, 40, 45.
While Plaintiff refers to City’s search and seizure policy as “Exhibit 2,” implying the
existence of an “Exhibit 1,” he neglected to attach either exhibit to his Amended
Complaint. Id. at p. 11, ¶ 40. To the extent that Plaintiff discusses the contents of City’s
official policies, Plaintiff alleges that the policies themselves are insufficient as they do not
direct officers in the proper deployment of tasers nor to relevant Tenth Circuit precedent,
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 17 of 19

18
id. at p. 2, ¶ 8, but he fails to allege these policies are the “moving force” for any alleged
constitutional violation, only that one could reasonably infer deficient policies in light of
what transpired. Haines v. Fisher, 82 F.3d 1503, 1507 (10th Cir. 1996) (“[T]he official
policy must be the moving force for the constitutional violation in order to establish the
liability of a government body under § 1983.”); see also Pembauer v. City of Cincinnati,
475 U.S. 469, 479 (1986) (“The ‘official policy’ requirement was intended to distinguish
acts of the municipality from acts of employees of the municipality, and thereby make clear
that municipal liability is limited to action for which the municipality is actually
responsible.”) (emphasis in original). Indeed, Plaintiff’s allegations largely appear to
restate his failure to train allegation, discussed above. See Huff v. City of Aurora, Colorado,
2022 WL 4131438, at *9 (D. Colo. Sept. 12, 2022) (dismissing a claim of unconstitutional
formal policies where, for purposes of a motion to dismiss, the Court determined that
Officer’s actions violated the formal policy and therefore could not be “moving force”
behind injury.). Plaintiff’s allegations regarding an unconstitutional formal policy should
therefore be dismissed.
Plaintiff was previously invited to and did amend his Complaint [Dkt. 23 and 25] in
an attempt to address the issues raised in Defendants first motion to dismiss [Dkt. 4 and 5].
Although the Court should grant leave to amend freely “if it appears at all possible that the
plaintiff can correct the defect” where dismissal is granted for failure to state a claim,
Triplett v. Leflore County, Okla., 712 F.2d 444, 446 (10th Cir. 1983), leave to amend is not
automatic and the Court may properly deny leave to amend for “failure to cure deficiencies
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 18 of 19

19
by amendment previously allowed.” Bekkem v. Wilkie, 915 F.3d 1257, 1275-76 (10th Cir.
2019) quoting Willkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010). Considering
the previous opportunity to amend and the inability of Plaintiff to assert facts supporting a
plausible claim for of municipal liability for ratification and an unconstitutional formal
policy as set forth above, the undersigned Magistrates recommends that any attempt to
further amend the Amended Complaint should be denied.
CONCLUSION
Accordingly, the undersigned Magistrate Judge RECOMMENDS that Defendant
Berryhill’s Motion to Dismiss [Docket No. 28] should be GRANTED as duplicative and
Defendant City’s Motion to Dismiss [Docket No. 30] should be GRANTED IN PART and
DENIED IN PART, such that the Defendant City’s Motion to Dismiss should be granted
as 	to 	Plaintiff’s 	claim 	of 	municipal 	liability 	under 	a 	theory 	of 	ratification 	and
unconstitutional formal policy with prejudice as to Plaintiff’s right to further amend his
Amended Complaint and denied as to Plaintiff’s claim of municipal liability for failure to
train. Any objections to this Report and Recommendation must be filed within fourteen
days. See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
IT IS SO ORDERED this 28th day of November, 2022.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
6:22-cv-00007-JFH-GLJ Document 46 Filed in ED/OK on 11/28/22 Page 19 of 19