Buckner v. Sallisaw, City of et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
WILLIAM SEAN BUCKNER, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-22-146-JAR
)
CITY OF SALLISAW, OKLAHOMA; 	)
LT. HOUSTON MURRAY, individually 	)
and in his official capacity; 	)
CHIEF OF POLICE TERRY FRANKLIN, 	)
individually and in his official 	)
capacity, 	)
)
Defendants. 	)
OPINION AND ORDER
This matter comes before the Court on Defendant Houston Murray’s
Motion 	to 	Dismiss 	(Docket 	Entry 	#16) 	and 	Defendant 	City 	of 	Sallisaw’s
and Terry Franklin’s Motion to Dismiss (Docket Entry #17). 	The parties
presented oral argument on the Motions at a hearing before the Court.
Plaintiff commenced this action in this Court on May 12, 2022. 	He
alleges 	that 	he 	was 	subjected 	to 	a 	traffic 	stop 	by 	Defendant 	Houston
Murray, a lieutenant with the Sallisaw Oklahoma Police Department. 	The
allegations in the Verified Complaint indicate that on October 23, 2021,
Plaintiff and his wife were driving on Highway 64 in Sallisaw, Oklahoma
around 6:25 p.m. 	Plaintiff passed a City of Sallisaw police patrol SUV
and 	noted 	that 	the 	vehicle 	turned 	around, 	activated 	his 	lights, 	and
accelerated 	to 	drive 	up 	on 	Plaintiff’s 	vehicle. 	Plaintiff 	exited 	the
highway and pulled into a motel parking lot. 	The police vehicle followed
and parked directly behind Plaintiff’s vehicle.
Defendant 	Murray 	exited 	his 	vehicle. 	Plaintiff 	states 	that 	he
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rolled 	down 	the 	driver’s 	side 	window. 	Defendant 	Murray 	identified
himself and stated that the reason for the traffic stop was a burned out
head 	lamp. 	Plaintiff 	exited 	his 	vehicle 	to 	observe 	the 	lights.
Plaintiff’s lights were on high beam and his wife changed them to low
beam 	and 	Plaintiff 	alleges 	both 	lights 	were 	illuminated. 	He 	informed
Defendant 	Murray 	that 	the 	light 	issue 	had 	been 	resolved. 	Plaintiff
alleges Defendant Murray stated that he did not care and that his camera
on his vehicle would prove otherwise.
Plaintiff 	states 	that 	he 	returned 	to 	his 	vehicle 	and 	closed 	the
door. 	He asked Defendant Murray if he was going to write a citation and
Defendant Murray informed him that he was going to give him a warning
but 	because 	of 	Plaintiff’s 	attitude, 	he 	intended 	to 	write 	a 	citation.
Plaintiff 	states 	that 	he 	“argued 	that 	both 	headlamps 	were 	in 	working
order and [Defendant Murray] didn’t care.”
Defendant 	Murray 	asked 	for 	Plaintiff’s 	driver’s 	license,
registration, 	and 	proof 	of 	insurance. 	Plaintiff 	immediately 	provided
his 	license 	and 	registration 	but 	did 	not 	have 	a 	paper 	copy 	of 	his
insurance verification and sought to access a digital copy. 	Plaintiff
alleges 	Defendant 	Murray 	took 	Plaintiff’s 	license 	and 	registration 	to
his vehicle and returned with a completed citation for a lack of proof
of 	insurance 	and 	defective 	headlamps. 	Plaintiff 	states 	that 	he 	tried
to show Defendant Murray the digital insurance verification but he stated
it was too late.
As 	Defendant 	Murray 	presented 	the 	citation 	to 	Plaintiff, 	another
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nearby vehicle made a loud noise, making it difficult for Plaintiff to
hear Defendant Murray. 	After the noise subsided, Defendant Murray asked
“are 	you 	going 	to 	sign 	this 	citation?” 	Plaintiff 	answered 	“No”, 	but
states he was going to say “No, before I read it.” 	He then states he
told 	Defendant 	Murray 	three 	times 	that 	he 	would 	sign 	the 	citation.
Nevertheless, Plaintiff alleges Defendant Murray backed from Plaintiff’s
window, placed his hand on his gun, and ordered Plaintiff to exit his
vehicle because he was placing him under arrest.
Plaintiff 	again 	allegedly 	offered 	to 	sign 	the 	citation 	but
Defendant 	Murray 	told 	him 	it 	was 	too 	late 	and 	he 	was 	going 	to 	jail.
Plaintiff was handcuffed and contends the cuffs were “extremely tight”
which cause him pain. 	Defendant Murray responded by telling Plaintiff
to “stop resisting.” 	Defendant Murray told Plaintiff and his wife that
he was impounding the vehicle parked on the motel’s property. 	Plaintiff
asked that the vehicle not be impounded because it would force his wife
to walk home some four miles away, offering instead for his wife to drive
the 	vehicle 	home. 	Plaintiff 	alleges 	Defendant 	Murray 	stated 	that 	he
didn’t 	care 	and 	was 	going 	to 	impound 	Plaintiff’s 	vehicle. 	Defendant
Murray 	placed 	Plaintiff 	in 	the 	backseat 	of 	his 	vehicle. 	Plaintiff
alleges 	that 	Defendant 	Murray 	placed 	handcuffs 	on 	his 	wrist 	“so 	tight
that 	it 	pealed 	skin 	off 	forcing 	me 	to 	flinch 	so 	he 	could 	yell 	Stop
resisting 	arrest 	and 	place 	a 	charge 	of 	resisting 	arrest, 	which 	is
documented with photographs at the jail intake. . . .”
Defendant 	Murray 	transported 	Plaintiff 	to 	the 	police 	department.
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During the trip, Plaintiff alleges that he demanded that Defendant Murray
charge 	him 	with 	every 	violation 	that 	he 	threatened 	and 	impound 	his
vehicle and force his wife to walk home. 	Plaintiff was booked into the
jail and posted bond.
During 	the 	course 	of 	the 	encounter, 	Plaintiff 	alleges 	Defendant
Murray 	“asked 	if 	I 	was 	Native 	American, 	which 	is 	highly 	offence 	(sic)
to me as I belong to the Cherokee Nation, in which he had my driver’s
license, he ran my Cherokee License plates in his computer, and confirmed
the vehicle was registered to me, with Cherokee Tags. 	I understood this
to be a highly offense (sic) remark and that his actions was (sic) based
on 	the 	fact 	that 	I 	belong 	to 	the 	Cherokee 	Tribe.” 	Plaintiff 	states
that, after his arrest, he has not received a traffic citation or notice
to appear in any court.
Plaintiff 	also 	alleges 	that 	Defendant 	Murray 	has 	a 	history 	of
similar 	conduct 	and 	mistreatment 	of 	citizens 	and 	has 	failed 	to 	follow
the 	policies 	and 	procedures 	of 	the 	Sallisaw 	Police 	Department.
Plaintiff identifies a “John Doe” who was harassed by Defendant Murray
and “to protect him from retaliation.” 	He also alleges Defendant Murray
has been the subject of internal investigations by the Sallisaw Police
Department.
Plaintiff 	alleges 	Defendant 	Terry 	Franklin, 	the 	Sallisaw 	Police
Chief, 	has 	not 	adequately 	trained 	or 	supervised 	Defendant 	Murray. 	He
also states that Defendant Murray has been permitted to continue in his
job despite multiple complaints and instances of misconduct.
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Plaintiff alleges three causes of action against the Defendants:
(1) 	Discrimination against a Native American in violation of 42
U.S.C. 	§ 	1981. 	Plaintiff 	asserts 	disparate 	treatment 	by
Defendant 	Murray 	because 	of 	his 	status 	as 	a 	member 	of 	the
Cherokee 	Nation 	and 	because 	he 	had 	a 	tag 	issued 	by 	the
Cherokee Nation;
(2) 	Deprivation 	of 	civil 	rights 	in 	violation 	of 	his 	Fourteenth
Amendment 	rights 	as 	enforced 	through 	42 	U.S.C. 	§ 	1983.
Plaintiff contends Defendant Murray was acting under color of
law when he violated Plaintiff’s civil rights in respect to
a 	lack 	probable 	cause, 	unlawful 	detention, 	false 	arrest
without legal authority, use of excessive force, and injury
to his person.
(3) 	Failure 	to 	train 	and 	supervise 	in 	violation 	of 	42 	U.S.C. 	§
1983. 	Plaintiff alleges Defendant Franklin and the Sallisaw
Police Department did not have adequate training in place and
did not adequately supervise Defendant Murray. 	To that end,
Plaintiff 	seeks 	for 	the 	Court 	to 	impose 	a 	“proactive
Injunction” upon Defendant Franklin and the Sallisaw Police
Department requiring and precluding certain conduct outlined
in the Complaint.
As 	an 	initial 	matter, 	Defendants 	request 	that 	this 	Court 	take
judicial 	notice 	of 	the 	dash 	camera 	video 	and 	body 	camera 	video 	from
Defendant Murray’s patrol unit and his person for purposes of considering
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these 	motions 	to 	dismiss. 	Needless 	to 	say, 	Defendants 	dispute
Plaintiff’s 	recitation 	of 	the 	facts 	arising 	from 	the 	incident 	between
Defendant Murray and Plaintiff and his wife as stated in the Complaint
and provide flash drives containing the referenced videos. 	This Court,
however, does not find that the videos are the type of exhibits which
are 	typically 	considered 	in 	connection 	with 	a 	Rule 	12(b)(6) 	motion 	to
dismiss. 	Consideration of evidence which is outside of the pleadings
without converting the dismissal motion to one for summary judgment is
error. 	Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir.
1998)( “. . . courts have broad discretion in determining whether or not
to accept materials beyond the pleadings. 5A Charles Alan Wright & Arthur
R. 	Miller, 	Federal 	Practice 	and 	Procedure 	§ 	1366 	(1990). 	Reversible
error may occur, however, if the district court considers matters outside
the pleadings but fails to convert the motion to dismiss into a motion
for summary judgment.”). 	Other courts considering similar requests have
also 	declined 	to 	consider 	such 	videos 	at 	the 	motion 	to 	dismiss 	stage,
finding 	it 	more 	appropriately 	addressed 	in 	a 	request 	for 	summary
judgment. 	See Estate of Holmes by & through Couser v. Somers, 387 F.
Supp. 	3d 	1233 	(D. 	Kan. 	2019), 	aff'd 	sub 	nom. 	Couser 	v. 	Gay, 	959 	F.3d
1018 	(10th 	Cir. 	2020). 	The 	sole 	exception 	found 	occurred 	where 	the
plaintiff incorporated the body camera video in the allegations of the
Complaint and did not dispute the video’s authenticity, a circumstance
not present in this case. 	See Harris v. Romero, 2021 WL 1169985, at *8
(D. 	Colo. 	Mar. 	29, 	2021), 	appeal 	dismissed, 	(10th 	Cir. 	June 	3, 	2022).
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Therefore, Defendants’ motions will be considered without regard to the
video evidence.
Section 1981 Claim for Racial Discrimination
Plaintiff 	asserts 	a 	claim 	under 	a 	claim 	under 	42 	U.S.C. 	§ 	1981,
alleging 	Defendant 	Murray 	engaged 	in 	discrimination 	based 	upon
Plaintiff’s citizenship in the Cherokee Nation and his status as a Native
American. 	Plaintiff 	states 	that 	he 	was 	subjected 	to 	“disparate
treatment” 	because 	he 	had 	a 	vehicle 	tag 	issued 	by 	the 	Cherokee 	Nation
and due to his tribal membership. 	In order to prevail on a claim under
§ 1981, a plaintiff must demonstrate: “(1) that the plaintiff is a member
of 	a 	protected 	class; 	(2) 	that 	the 	defendant 	had 	the 	intent 	to
discriminate 	on 	the 	basis 	of 	race; 	and 	(3) 	that 	the 	discrimination
interfered with a protected activity as defined in § 1981.” Barfield v.
Com. 	Bank, 	N.A., 	484 	F.3d 	1276, 	1278 	(10th 	Cir. 	2007) 	quoting 	Hampton
v. 	Dillard 	Dep't 	Stores, 	Inc., 	247 	F.3d 	1091, 	1102 	(10th 	Cir. 	2001).
The activities which are protected under § 1981 are expressly stated as
follows:
§ 1981. Equal rights under the law
(a) 	Statement of equal rights
All persons within the jurisdiction of the United
States 	shall 	have 	the 	same 	right 	in 	every 	State
and 	Territory 	to 	make 	and 	enforce 	contracts, 	to
sue, 	be 	parties, 	give 	evidence, 	and 	to 	the 	full
and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed
by 	white 	citizens, 	and 	shall 	be 	subject 	to 	like
punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.
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(b) 	“Make and enforce contracts” defined
For purposes of this section, the term “make and
enforce 	contracts” 	includes 	the 	making,
performance, 	modification, 	and 	termination 	of
contracts, 	and 	the 	enjoyment 	of 	all 	benefits,
privileges, 	terms, 	and 	conditions 	of 	the
contractual relationship.
(c) 	Protection against impairment
The rights protected by this section are protected
against 	impairment 	by 	nongovernmental
discrimination and impairment under color of State
law.
42 U.S.C.A. § 1981.
Plaintiff’s § 1981 claim suffers from two deficiencies on the face
of the Complaint – (1) the traffic stop involved in this case does not
entail 	the 	type 	of 	protected 	activity 	set 	out 	in 	§ 	1981; 	and 	(2) 	no
intentional racial discrimination has been stated in the Complaint. 	A
review 	of 	the 	allegations 	as 	made 	by 	Plaintiff 	does 	not 	involve 	the
making 	or 	enforcement 	of 	contracts 	or 	any 	of 	the 	other 	activities
provided by § 1981. 	As a result, the claim cannot be maintained.
Further, even if the type of racial discrimination contemplated by
§ 1981 could on some level be gleaned from the Complaint, the allegations
do 	not 	give 	rise 	to 	intentional 	discrimination. 	Plaintiff 	complains
that 	Murray 	asked 	if 	he 	was 	Native 	American. 	The 	Supreme 	Court’s
decision in McGirt v. Oklahoma, 207 L. Ed. 2d 985, 140 S. Ct. 2452 (2020)
determined that the reservations of the Muscogee (Creek) Nation had not
be disestablished and that the state courts had no jurisdiction over the
Muscogee Nation’s citizens on reservation land to prosecute crimes under
the Major Crimes Act. 	Since the McGirt decision and its progeny, this
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Court takes judicial notice from its own dockets it has become necessary
for law enforcement to ascertain if the suspect that they are detaining
are 	citizens 	of 	Native 	American 	nations 	in 	order 	to 	determine 	whether
the 	appropriate 	venue 	for 	prosecution 	is 	state, 	federal, 	or 	tribal
courts. 	The various Indian Nations in Oklahoma do not issue their own
driver’s licenses as other states within the United States. 	Therefore,
the Native American citizenship of a particular individual is not readily
ascertainable in a traffic stop, for instance, without questioning. 	No
racially discriminatory intent can reasonably be derived from the mere
question 	of 	tribal 	citizenship. 	Plaintiff 	may 	have 	considered 	the
remark 	offensive, 	but 	it 	was 	not 	constitutionally 	violative. 	As 	a
result, Plaintiff’s § 1981 claim will be dismissed.
Section 1983 Claims
A traffic stop such as the one involved in this case is a seizure
which 	implicates 	the 	Fourth 	Amendment 	protecting 	citizens 	against
unreasonable 	searches 	and 	seizures. 	United 	States 	v. 	White, 	584 	F.3d
935, 944-45 (10th Cir. 2009). 	The initial stop is appropriate if the
officer observes a violation of a traffic ordinance. 	United States v.
Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995). 	Plaintiff appears to
believe from his Complaint that he was stopped for either not having his
lights turned on at a particular time of day or having his lights turned
on at a particular time of day. 	Murray apparently pulled Plaintiff over
for having a headlight out. 	It would appear from the report attached
to the Motion that the basis for the stop was the inoperable headlight.
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Therefore, the stop appears to be justified. 	Because this Court is not
considering the evidence extraneous to the Complaint at this time, the
basis 	for 	the 	arrest 	will 	be 	subject 	to 	discovery 	and 	may 	be 	more
appropriately 	addressed 	by 	summary 	judgment. 	Similarly, 	the
circumstances surrounding the force used during the course of the arrest
will 	be 	subject 	to 	further 	discovery 	to 	determine 	whether 	it 	was
excessive under the circumstances.
State Law Claims
Defendants 	point 	out 	that 	Plaintiff 	references 	state 	law 	claims
over 	which 	supplemental 	jurisdiction 	will 	be 	exercised. 	This 	Court
agrees that no state law claims are identified in the Complaint.
Official Capacity Claim Against Murray and Franklin
Murray and Franklin challenge Plaintiff’s assertion of an official
capacity claim against him as duplicative of the claim asserted against
the City of Sallisaw. 	An official capacity claim is treated as a suit
against 	the 	municipality. 	McDonald 	v. 	Wise, 	769 	F.3d 	1202, 	1214-15
(10th Cir. 2014). 	Since this is the case, the official capacity claims
against Murray and Franklin will be dismissed.
Municipal Liability Claim Against City of Sallisaw
The City of Sallisaw asserts that Plaintiff has failed to identify
a 	plausible 	claim 	against 	it 	because 	he 	has 	not 	identified 	a
constitutionally violative policy and his failure to train claim lacks
sufficient 	factual 	support. 	The 	City 	seeks 	dismissal 	of 	the 	claims
against it under Fed. R. Civ. P. 12(b)(6), alleging the claims fail to
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meet the plausibility standard enunciated in United States Supreme Court
cases of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662 (2009). 	Clearly, Bell Atlantic changed the legal
analysis 	applicable 	to 	dismissal 	motions 	filed 	under 	Fed. 	R. 	Civ. 	P.
12(b)(6), 	creating 	a 	“refined 	standard” 	on 	such 	motions. 	Khalik 	v.
United Airlines, 671 F.3d 1188, 1191 (10th Cir. 2012)(citation omitted).
Bell Atlantic stands for the summarized proposition that “[t]o survive
a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its
face.’” 	Ashcroft 	v. 	Iqbal, 	129 	S.Ct. 	1937, 	1949 	(2009) 	quoting 	Bell
Atlantic, 550 U.S. at 570. 	The Supreme Court did not parse words when
it stated in relation to the previous standard that “a complaint should
not be dismissed for failure to state a claim unless it appears beyond
doubt 	that 	the 	plaintiff 	can 	prove 	no 	set 	of 	facts 	in 	support 	of 	his
claim 	which 	would 	entitle 	him 	to 	relief” 	is 	“best 	forgotten 	as 	an
incomplete, 	negative 	gloss 	on 	an 	accepted 	pleading 	standard.” 	Bell
Atlantic, 	550 U.S. at 546.
The 	Tenth 	Circuit 	has 	interpreted 	the 	plausibility 	standard 	as
referring “to the scope of the allegations in the complaint: 	if they
are so general that they encompass a wide swath of conduct, much of it
innocent, then the plaintiffs ‘have not nudged their claims across the
line 	from 	conceivable 	to 	plausible.’” 	Robbins 	v. 	Oklahoma, 	519 	F.3d
1242, 1247 (10th Cir. 2008). 	The Bell Atlantic case, however, did not
intend the end of the more lenient pleading requirements of Fed. R. Civ.
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P. 	8(a)(2). 	Khalik, 	671 	F.3d 	at 	1191. 	Rather, 	in 	Khalik, 	the 	Tenth
Circuit 	recognized 	the 	United 	States 	Supreme 	Court’s 	continued
endorsement of Rule 8's “short and plain statement” requirement in the
case of Erickson v. Pardus, 551 U.S. 89 (2007) wherein the Supreme Court
found “[s]pecific facts are not necessary; the statement need only ‘give
the 	defendant 	fair 	notice 	of 	what 	the 	. 	. 	. 	claim 	is 	and 	the 	grounds
upon which it rests.’” 	Id. at 93.
While the claim is admittedly tenuous on the facts alleged, this
Court will not require Plaintiff to amend the Complaint with additional
factual details. 	The claim as plead provides sufficient notice to the
City of the failure to train claim against it at this time.
Qualified Immunity of Murray
Murray 	contends 	he 	is 	entitled 	to 	qualified 	immunity. 	“At 	the
motion to dismiss stage, it is the defendant’s conduct as alleged in the
complaint that is scrutinized for objective legal reasonableness.”. . .
The Court evaluates “(1) whether the facts that a plaintiff has alleged
make out a violation of a constitutional right, and (2) whether the right
at 	issue 	was 	clearly 	established.” 	Keith 	v. 	Koerner, 	707 	F.3d 	1185,
1188 (10th Cir. 2013). 	At least insofar as an excessive force claim is
alleged, 	both 	of 	these 	elements 	are 	met. 	Qualified 	immunity 	will 	be
denied at this time until further facts surrounding the force employed
is developed.
Declaratory and Injunctive Relief
Plaintiff 	has 	failed 	to 	set 	forth 	a 	sufficient 	basis 	for
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declaratory or injunctive relief in the Complaint and does not justify
the 	inclusion 	of 	such 	relief 	in 	his 	response 	to 	the 	Motions. 	These
assertions for relief will be dismissed.
Punitive Damages Against the City of Sallisaw
Plaintiff concedes that punitive damages cannot be recovered from
the City of Sallisaw. 	This avenue of damages will be dismissed.
IT IS THEREFORE ORDERED that Defendant Houston Murray’s Motion to
Dismiss 	(Docket 	Entry 	#16) 	is 	hereby 	GRANTED, 	in 	part, 	in 	that 	the 	§
1981 	claim, 	§1983 	official 	capacity 	claim, 	and 	any 	asserted 	state 	law
claims 	are 	hereby 	DISMISSED. 	The 	remainder 	of 	the 	Motion 	is 	hereby
DENIED.
IT IS FURTHER ORDERED that Defendant City of Sallisaw’s and Terry
Franklin’s 	Motion 	to 	Dismiss 	(Docket 	Entry 	#17) 	is 	hereby 	GRANTED, 	in
part, 	in 	that 	the 	§1983 	official 	capacity 	claim 	against 	Franklin, 	any
asserted state law claims, any declaratory or injunctive relief, and the
claim for punitive damages are hereby 	DISMISSED. 	The remainder of the
Motion is hereby DENIED.
IT IS SO ORDERED this _____ day of March, 2023.
______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
31st
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