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 	)
CHIEF OF POLICE TERRY FRANKLIN, 	)
individually, 	)
)
Defendants. 	)
OPINION AND ORDER
This matter comes before the Court on Defendant Houston Murray’s
Motion 	for 	Summary 	Judgment 	(Docket 	Entry 	#66) 	and 	Defendant 	City 	of
Sallisaw’s and Terry Franklin’s Motion for Summary Judgment (Docket Entry
#67). 	The 	parties 	consented 	to 	the 	jurisdiction 	of 	a 	United 	States
Magistrate Judge on July 20, 2022.
Statement of Uncontroverted Facts
On 	October 	23, 	2021, 	Defendant 	Lieutenant 	Houston 	Murray
(“Murray”), 	a 	law 	enforcement 	officer 	with 	Defendant 	City 	of 	Sallisaw
(the “City”), was on patrol when he observed a pickup truck travelling
in the opposite direction on Highway 64 with one headlight illuminated.
Specifically, the headlight on the driver’s side of the truck was visibly
unlit. 	DashCam Video, Docket Entry Nos. 66 and 67, Exh. No. B at 00:32. 1
1 The entirety of the traffic encounter between Buckner and Murray is captured
on the dash camera of Murray’s patrol unit and his body camera. 	See, Exhibit
No. B (DashCam Video) and Exhibit No. C (BodyCam Video) appended to both Motions
for Summary Judgment, Docket Entry Nos. 66 and 67. 	The time references set
forth after each material fact pertains to these video exhibits.
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Murray activated his overhead lights on his patrol unit, made a u-turn
in the street and pursued the truck. 	DashCam Video at 00:37-00:43. 	The
truck promptly pulled over into a motel parking lot and stopped. 	DashCam
Video at 01:09.
Murray approached the truck on the driver’s side. 	DashCam Video
at 01:36. 	The driver, identified as Plaintiff, rolled down his window
and asked, “What can I do for you?”. 	Murray stated, “The reason I pulled
you 	over 	is 	you 	have 	a 	headlight 	out. 	I 	need 	to 	see 	your 	license,
insurance, and registration.” 	BodyCam Video at 00:10-00:14. 	Plaintiff
then 	began 	arguing 	with 	Murray, 	claiming 	he 	did 	not 	have 	a 	headlight
out. 	BodyCam 	Video 	at 	00:14-00:16. 	Plaintiff 	did 	not 	produce 	his
license, insurance, and registration. 	Rather, Plaintiff got out of his
truck, 	went 	to 	the 	front 	of 	his 	vehicle 	and 	said, 	“Damn”, 	in 	obvious
reference 	to 	the 	fact 	that 	the 	driver’s 	side 	headlight 	was 	not
illuminated. 	BodyCam Video at 00:13-00:28.
At 	this 	point 	in 	the 	video, 	Plaintiff’s 	wife, 	who 	occupied 	the
passenger seat of the truck, leaned over and activated the high beam on
the headlights of the truck. 	Plaintiff then stated, “No, I don’t.” 	Id.
Murray 	told 	Plaintiff’s 	wife 	to 	return 	the 	headlights 	to 	low 	beam.
BodyCam Video at 00:28-00:33. 	Plaintiff then returned to the driver’s
seat 	of 	the 	truck, 	stating, 	“Okay, 	I 	got 	a 	headlight 	out.” 	BodyCam
Video at 00:43-00:45.
Murray 	again 	requested 	that 	Plaintiff 	produce 	his 	license,
insurance, 	and 	registration. 	BodyCam 	Video 	at 	00:45. 	In 	response,
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Plaintiff produced his license while still discussing the headlight with
his 	wife. 	BodyCam 	Video 	at 	00:47-1:00. 	Murray 	stated 	that 	the 	stop
would have gone differently if Plaintiff would have simply agreed that
he 	had 	a 	headlight 	out. 	BodyCam 	Video 	at 	01:01-01:04. 	When 	Murray
informed Plaintiff that he intended to write a citation, Plaintiff stated
that he was going to “call a buddy.” 	BodyCam Video at 01:11-01:13. 	He
informed 	Murray 	that 	he 	was 	going 	to 	call 	Cole 	Hostetter, 	a 	City 	of
Sallisaw patrol law enforcement officer. 	BodyCam Video at 01:14-01:15.
Murray 	again 	requested 	Plaintiff 	to 	provide 	his 	registration 	and
insurance. 	BodyCam 	Video 	at 	01:16-01:17. 	Plaintiff 	insisted 	upon
calling “Cole” and did not provide the documentation requested.
Murray asked Plaintiff if he was a member of the Cherokee Nation
to which Plaintiff responded “Yes, I am. 	Why?” 	Murray responded that
he would have to designate a different court on the citation. 	BodyCam
Video at 01:19-01:26.
Murray once again requested that Plaintiff produce his registration
and 	insurance. 	Plaintiff 	responded, 	“Let 	me 	call 	Cole.” 	Murray
responded, “Please don’t. 	I don’t have time to talk to him.” 	BodyCam
Video at 01:27-01:30. 	Murray then directed that the registration and
insurance 	be 	produced 	emphatically. 	BodyCam 	Video 	at 	01:32-01:38.
Plaintiff insisted, “Let me call Cole.” 	BodyCam Video at 01:38-01:39.
Plaintiff 	told 	Murray 	to 	“chill 	out.” 	BodyCam 	video 	at 	01:42-01:43.
Murray again directed that Plaintiff produce the required documents and
told Plaintiff that he did not have time to “sit here and wait for you”
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to do so. 	BodyCam Video at 01:44-01:48. 	Murray told Plaintiff that he
was free “to call Cole and talk to him all day long” but only after he
produced the registration and insurance. 	BodyCam Video at 01:49-01:53.
Plaintiff discussed Murray’s behavior with his wife. 	Murray then
asked Plaintiff why he was making the process difficult and told him he
needed the documents, “so I can write my ticket and get you out of here.”
BodyCam Video at 02:02-02:21.
Plaintiff then produced an insurance verification form. 	BodyCam
Video at 02:22. 	Murray reviewed the form but returned it to Plaintiff
because it was expired and invalid. 	Plaintiff then handed Murray his
registration. 	BodyCam 	Video 	at 	02:33. 	Murray 	offered 	to 	allow
Plaintiff an opportunity to provide an electronic proof of insurance on
his cell phone. 	BodyCam Video at 02:39. 	Plaintiff and his wife then
attempted to access the form. 	Neither, however, could produce the proof
of 	insurance. 	BodyCam 	Video 	at 	02:46-03:15. 	Plaintiff 	told 	Murray,
“write a ticket for that, too.” 	BodyCam Video at 03:05. 	Plaintiff and
Murray then engaged in a verbal altercation over one another’s attitude.
Plaintiff then reiterated he was calling “Cole.” 	BodyCam Video at 03:14-
03:33.
Murray took the information back to his patrol unit, stating under
his breath that Plaintiff could call “Cole”, “like he makes a damn” and
“he’s a pissant, too.” 	BodyCam Video at 03:29-03:40. 	Murray got into
his patrol unit and prepared a citation for Plaintiff. 	BodyCam Video
at 03:43-10:18.
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Murray 	returned 	to 	Plaintiff’s 	truck 	and 	handed 	him 	his
registration and license. 	BodyCam Video at 10:31. 	Plaintiff stated he
could 	not 	hear 	Murray. 	BodyCam 	Video 	at 	10:34. 	Plaintiff’s 	wife
attempted to show Murray her cell phone and proof of insurance. 	BodyCam
Video 	at 	10:37. 	Murray 	informed 	Plaintiff 	of 	the 	date, 	time, 	and
location of the court hearing on the citations. 	BodyCam Video at 10:43-
10:52. 	Murray stated he was writing a ticket for the headlight and not
having 	an 	insurance 	security 	form 	available 	when 	requested. 	BodyCam
Video at 11:07-11:11.
Plaintiff 	asked 	Murray 	if 	he 	was 	a 	lieutenant, 	to 	which 	Murray
responded he was. 	BodyCam Video at 11:17. 	Plaintiff asked how he could
file 	a 	complaint 	against 	Murray. 	Murray 	told 	him 	to 	go 	and 	talk 	to
Lieutenant 	Martins 	tonight. 	BodyCam 	Video 	at 	11:18-11:28. 	Plaintiff
accused Murray of giving him a citation of the headlight instead of a
warning because he believed he was being mean to Murray. 	BodyCam Video
at 11:36-11:42. 	Murray responded, “No, I was going to give you a ticket
anyway, 	sir. 	It’s 	a 	cruise 	night. 	Anytime 	I 	stop 	a 	car 	on 	cruise
night, I give it a ticket.” 	BodyCam Video at 11:39-11:45. 	Plaintiff
stated, 	“so, 	you’re 	being 	prejudiced 	against 	Indians?” 	Murray
responded, 	“No.” 	Plaintiff 	asked 	if 	Murray 	was 	Indian. 	Murray
responded, “Yes, I am. 	I’m a Cherokee.” 	BodyCam Video at 11:48-11:54.
Plaintiff and his wife continued to argue with Murray about the citation.
He concluded by stating, “I don’t give a shit. 	Just give me the ticket
so I can go. 	I got other things to do.” 	BodyCam Video at 11:55-12:03.
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Murray then handed Plaintiff the citation and asked him to “sign
this box right here.” 	BodyCam Video at 12:03. 	Plaintiff interrupted,
stating, 	“I 	ain’t 	signin’ 	nothin’.” 	BodyCam 	Video 	at 	12:04. 	Murray
responded by directing Plaintiff to “step out, then. 	Get out.” 	BodyCam
Video 	at 	12:05-12:06. 	He 	then 	yelled, 	“Get 	out, 	now! 	Get 	out, 	now.”
Plaintiff responded by stating, “I’ll sign it.” 	Murray yelled, “No, get
out, now! 	Get out, now!” 	Plaintiff repeated he would sign the ticket,
while getting out of his truck. 	Murray stated, “No, I asked you to sign
it and you said you wouldn’t.” 	He further stated, “Put your hands behind
your back. 	You’re under arrest.” 	BodyCam Video at 12:08-12:21.
Murray put one handcuff on Plaintiff’s left wrist and instructed
that 	a 	wrecker 	be 	sent 	out 	to 	the 	location. 	BodyCam 	Video 	at 	12:21-
12:27. 	Plaintiff then resisted Murray putting the handcuff on his right
wrist. 	BodyCam Video at 12:27-12:28. 	Murray instructed Plaintiff to
“loosen 	your 	hand.” 	BodyCam 	Video 	at 	12:28. 	While 	Murray 	was
attempting 	to 	put 	the 	handcuff 	on 	Plaintiff’s 	right 	wrist, 	Plaintiff
stated, 	“that 	fucking 	hurts.” 	BodyCam 	Video 	at 	12:30. 	Murray
responded, “if you’d quit fighting it, they won’t hurt.” 	BodyCam Video
at 12:32-12:33.
Plaintiff was eventually handcuffed and transported by Murray to
the Sallisaw Police Department. 	He was booked into jail and released
on bond.
Plaintiff did not complain further about the handcuffs causing him
distress while being transported. 	At the jail, a photograph was taken
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of Plaintiff’s wrist. 	He later stated that his wrist was bruised by the
handcuffs, 	but 	Plaintiff 	admitted 	that 	he 	did 	not 	seek 	any 	medical
treatment for his wrist and the injury has since healed.
Defendants offered the affidavit of John Weber, the police Captain
of 	the 	Patrol 	Division 	for 	the 	City 	of 	Sallisaw 	Police 	Department.
Captain Weber attests that
1) 	Murray completed CLEET training while with the Sallisaw Police
Department;
2) 	Murray 	completed 	Lexipol 	Daily 	Training 	Bulletin 	training
provided by Lexipol, a private entity recognized by CLEET that
develops 	policies 	for 	public 	safety 	agencies 	and 	provides
training;
3) 	The Sallisaw Police Department maintains and enforces written
policies and procedures;
4) Murray 	was 	one 	of 	the 	most 	trained 	police 	officers 	in 	the
Sallisaw Police Department. 	He retired in August of 2022 after
almost 33 years as a state certified law enforcement officer;
5) Plaintiff 	filed 	a 	complaint 	over 	Murray’s 	conduct 	during 	the
stop, detention, and arrest on October 23, 2021. 	Captain Weber
investigated 	the 	allegations 	in 	the 	complaint 	and 	found 	no
violations 	other 	than 	receiving 	a 	warning 	for 	commenting 	to
himself 	on 	the 	BodyCam 	Video 	that 	Plaintiff 	and 	Officer
Hostetter were “pissants.”
6) Captain Weber also attested that the BodyCam Video demonstrates
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at 	0:12:40-0:12:54 	that 	Murray’s 	actions 	were 	consistent 	with
an 	officer 	checking 	the 	tightness 	between 	the 	handcuffs 	after
their application, and the audible “click” was consistent with
the noise handcuffs make when the double-lock safety mechanism
is engaged to prevent the handcuffs from tightening;
7) Captain 	Weber 	found 	no 	violation 	of 	policy 	to 	warrant
disciplinary action arising from the incident in question;
8) Captain Weber was unaware of any history of Murray being accused
of using excessive force; and
9) Captain Weber was unaware of any history of Murray being accused
of making unlawful traffic stops, unlawful detentions, or false
arrests.
Murray 	completed 	CLEET 	training 	in 	October 	of 	1989 	and 	became 	a
certified law enforcement officer in the State of Oklahoma at that time.
Docket 	Entry 	No. 	67 	at 	Exh. 	No. 	I. 	Murray 	was 	hired 	by 	the 	City 	of
Sallisaw in June of 2001 as a police dispatcher. 	He subsequently became
a patrol officer in 2002. 	Id. at Exh. No. J, p. 8, ll. 14-16. 	Murray
later earned his Intermediate and Advanced CLEET Certificates. 	Id. at
Exh. 	Nos. 	K 	and 	L. 	He 	was 	promoted 	to 	lieutenant 	in 	the 	police
department patrol division in 2013. 	Id. at Exh. No. M. 	Murray completed
CLEET Field Training Officer training in 2016. 	Id. at Exh. No. N.
Plaintiff commenced this action in this Court on May 12, 2022. 	He
alleges three causes of action against the Defendants:
(1) 	Discrimination against a Native American in violation of 42
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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 a result of the decision represented in the Opinion and Order
entered March 31, 2023, the remaining claims are (a) the § 1983 claims
for false arrest and excessive force against Murray; and (b) failure to
train and supervise against Defendants Terry Franklin (“Franklin”) and
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City of Sallisaw (the “City”). 2
General Standard on Summary Judgment
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment 	is 	appropriate 	“if 	the 	pleadings, 	depositions, 	answers 	to
interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that 	the 	moving 	party 	is 	entitled 	to 	judgment 	as 	a 	matter 	of 	law.”
Universal Money Centers v. A.T. & T., 22 F.3d 1527, 1529 (10th Cir.),
cert. denied, 513 U.S. 1052, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). 	The
moving party bears the initial burden of showing that there is an absence
of any issues of material fact. 	Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). 	A genuine issue
of material fact exists when “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” 	Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91
L.Ed 2d 202 (1986). 	In determining whether a genuine issue of a material
fact exists, the evidence is to be taken in the light most favorable to
the nonmoving party. 	Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). 	Once the moving party has
2 This Court is somewhat perplexed by the pleading on this latter claim against
Franklin and the City, since the relief originally requested was limited to
declaratory and injunctive relief which was dismissed as lacking support. 	The
Court 	is 	proceeding 	to 	address 	these 	claims 	on 	summary 	judgment 	by 	giving
Plaintiff the benefit of the doubt that he also seeks monetary damages for these
alleged violations.
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met 	its 	burden, 	the 	opposing 	party 	must 	come 	forward 	with 	specific
evidence, 	not 	mere 	allegations 	or 	denials 	of 	the 	pleadings, 	which
demonstrates that there is a genuine issue for trial. 	Applied Genetics
v. 	Fist 	Affiliated 	Securities, 	912 	F.2d 	1238, 	1241 	(10th 	Cir. 	1990);
Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).
Plaintiff does not oppose any of these material facts as set forth
herein. 	Consequently, the only question remaining is whether Defendants
are entitled to summary judgment as a matter of law.
McGirt Effect on Case
This 	Court 	initially 	must 	address 	a 	curious 	comment 	made 	in
Plaintiff’s 	briefing 	in 	response 	to 	the 	summary 	judgment 	requests.
Plaintiff 	appears 	to 	imply 	that 	either 	Murray 	acted 	outside 	of 	his
jurisdiction 	during 	the 	arrest 	of 	Plaintiff 	or 	this 	Court 	lacks
jurisdiction to consider this case – Plaintiff’s meaning is not entirely
clear. 	In 	either 	event, 	Plaintiff 	is 	misinformed. 	Nothing 	in 	the
Supreme Court’s pronouncement in McGirt v. Oklahoma, 207 L. Ed. 2d 985,
140 S. Ct. 2452 (2020) precluded Murray from writing Plaintiff a citation
and 	arresting 	him. 	Murray 	recognized 	Plaintiff’s 	status 	as 	a 	Native
American 	within 	the 	bounds 	of 	a 	reservation 	as 	delineated 	in 	McGirt
having asked if he was a tribal member and written the citation for an
appearance 	in 	the 	tribal 	court 	of 	the 	Cherokee 	Nation. 	The 	Cherokee
Nation, in turn, recognized Murray’s authority by initiating a case based
upon Murray’s Probable Cause Affidavit. 	This Court would also note that
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Plaintiff has not raised Murray’s lack of jurisdiction as an issue in
this action prior to responding to the summary judgment motions.
As 	for 	this 	Court’s 	jurisdiction, 	the 	action 	is 	based 	upon 	a
violation 	of 	a 	federal 	statute 	– 	42 	U.S.C. 	§ 	1983 	– 	initiated 	by
Plaintiff. 	This Court clearly possesses the requisite jurisdiction to
consider this case.
Plaintiff 	concludes 	this 	portion 	of 	his 	response 	in 	stating,
“Jurisdiction 	was 	exclusively 	in 	the 	District 	Court 	of 	the 	Cherokee
Nation. 	Consequently, the recitation of facts (controverted or not) in
both 	Motions 	for 	summary 	judgment 	are 	of 	no 	value.” 	Quite 	honestly,
this Court has no idea of the meaning or significance of this statement,
beyond that which is addressed herein.
Claim to Qualified Immunity by Murray
Murray first asserts that he is entitled to qualified immunity on
the 	§ 	1983 	claims 	for 	false 	arrest 	and 	excessive 	force. 	Generally,
government employees are immune from personal liability if their conduct
is reasonable in light of clearly established law and the information
that 	the 	employee 	possessed 	at 	the 	time 	of 	their 	actions. 	Davis 	v.
Scherer, 468 U.S. 183, 190 (1984); Harlow v. Fitzgerald, 457 U.S. 800,
818 	n.30 	(1982). 	The 	evaluation 	of 	a 	summary 	judgment 	motion 	on 	the
issue of qualified immunity is treated somewhat differently than other
summary judgment issues. 	Once a defendant raises a qualified immunity
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defense, a plaintiff bears a heavy burden to establish that a defendant
has violated clearly established law. 	Hannula v. City of Lakewood, 907
F.2d 129, 130-31 (10th Cir. 1990); Lutz v. Weld County School District,
784 F.2d 340, 342-43 (10th Cir. 1986). 	A plaintiff must “come forward
with 	facts 	or 	allegations 	to 	show 	both 	that 	the 	defendant's 	alleged
conduct violated the law and that the law was clearly established when
the alleged violation occurred.” 	Pueblo Neighborhood Health Centers v.
Losavio, 	847 	F.2d 	642, 	646 	(10th 	Cir. 	1988). 	In 	making 	this
determination, 	Plaintiff 	must 	demonstrate 	“that 	right 	was 	clearly
established 	such 	that 	a 	reasonable 	person 	in 	the 	defendant's 	position
would have known that [his] conduct violated that right.” 	Maestas v.
Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003)(citation omitted).
Plaintiff claims Murray falsely arrested him after he refused to
sign the citation issued to him. 	“[A] warrantless arrest like the one
at 	issue 	here 	is 	constitutional 	if 	the 	officer 	has 	probable 	cause 	to
believe that the person arrested has committed a crime. 	See Romero v.
Fay, 45 F.3d 1472, 1476 (10th Cir. 1995). ‘Probable cause exists if facts
and circumstances within the arresting officer's knowledge and of which
he or she has reasonably trustworthy information are sufficient to lead
a 	prudent 	person 	to 	believe 	that 	the 	arrestee 	has 	committed 	or 	is
committing an offense.’ Id. (internal quotation marks omitted). ‘When a
warrantless 	arrest 	is 	the 	subject 	of 	a 	§ 	1983 	action, 	the 	defendant
arresting 	officer 	is 	entitled 	to 	[qualified] 	immunity 	if 	a 	reasonable
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officer could have believed that probable cause existed to arrest the
plaintiff.’ 	Id. 	(internal 	quotation 	marks 	omitted). 	To 	prove 	a 	false
arrest, therefore, the plaintiff must allege that the arresting officer
acted without probable cause.” 	Howl v. Alvarado, 783 F. App'x 815, 818
(10th Cir. 2019).
The 	initial 	traffic 	stop 	was 	justifiable 	as 	evidenced 	by 	the
DashCam Video demonstrating Plaintiff’s equipment on his truck was not
operating 	properly 	– 	his 	headlight 	on 	low 	beam 	was 	not 	illuminated.
This 	condition 	violates 	Oklahoma 	law. 	Okla. 	Stat. 	tit. 	47 	§ 	12-
101(A)(1)(c)(“It shall be a misdemeanor, upon conviction, punishable as
provided in Section 17-101 of this title, for any person: 	1. To drive
or move, or for the owner to cause or permit to be driven or moved on
any highway, any vehicle or combination of vehicles which: * * * c. is
not at all times equipped with such lamps and other equipment in proper
condition 	and 	adjustment 	as 	required 	in 	this 	chapter.”); 	Okla. 	Stat.
tit. 47 § 12-203(A)(“Every motor vehicle shall be equipped with at least
two headlamps emitting a white light with at least one lamp on each side
of the front of the motor vehicle on the same level and as far apart as
practicable.”). 	The initial stop and the issuance of the citation for
the violation of these statutes was appropriate.
When 	presented 	with 	the 	citation 	by 	Murray, 	Plaintiff 	clearly
refused to sign it. 	This is also depicted clearly in the BodyCam Video.
Oklahoma law mandates the release of a person who commits a misdemeanor
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traffic violation if certain conditions exist, including that the person
signs a citation, evincing a promise to appear in court on the matter.
Okla. Stat. tit. 22 § 1115.1A(A)(3)(“ In addition to other provisions of
law for posting bail, any person, whether a resident of this state or a
nonresident, who is arrested by a law enforcement officer solely for a
misdemeanor 	violation 	of 	a 	state 	traffic 	law 	or 	municipal 	traffic
ordinance, 	shall 	be 	released 	by 	the 	arresting 	officer 	upon 	personal
recognizance if: * * * 3. The arrested person acknowledges, as evidenced
by the electronic signature of the person, a written promise to appear
as 	provided 	for 	on 	the 	citation, 	unless 	the 	person 	is 	unconscious 	or
injured 	and 	requires 	immediate 	medical 	treatment 	as 	determined 	by 	a
treating physician.”). 	Upon Plaintiff’s refusal to sign the citation,
Murray was authorized by law to arrest him and take him into custody.
Murray acted with probable cause in arresting Plaintiff and, therefore,
did not violate the clearly established law against false arrest. 	Murray
is entitled to qualified immunity on Plaintiff’s false arrest claim.
Plaintiff also asserted a claim for excessive force in response to
which Murray again claims qualified immunity. 	The Fourth Amendment to
the Constitution precludes an illegal “seizure” of a citizen through the
use of excessive force. 	U.S.C.A. Const. Amend. IV. 	The question to be
answered in a qualified immunity context on excessive force claims is
“whether the officers’ actions are ‘objectively reasonable’ in light of
the 	facts 	and 	circumstances 	confronting 	them, 	without 	regard 	to 	their
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underlying intent or motivation.” 	Graham v. Connor, 490 U.S. 386, 397
(1989). 	Under the totality of the circumstances approach, the court is
required to consider a balance of the factors of “the severity of the
crime 	at 	issue, 	whether 	the 	suspect 	poses 	an 	immediate 	threat 	to 	the
safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” 	Id. at 396.
In 	the 	instance 	of 	handcuffing 	such 	as 	in 	the 	case 	before 	this
Court, “unduly tight handcuffing can constitute excessive force where a
plaintiff 	alleges 	some 	actual 	injury 	from 	the 	handcuffing 	and 	alleges
that an officer ignored a plaintiff's timely complaints (or was otherwise
made aware) that the handcuffs were too tight.” 	Cortez v. McCauley, 478
F.3d 	1108, 	1129 	(10th 	Cir. 	2007). 	Other 	than 	Plaintiff’s 	initial
complaint that the handcuff on his left wrist “fucking hurts”, he did
not complain further about the tightness of the handcuffs or any injury
arising 	from 	it 	during 	the 	ride 	to 	the 	Sallisaw 	Police 	Department.
Further, the photograph of his wrist only indicates redness, which has
been determined to be insufficient for the required element of actual
injury. 	Id. 	Plaintiff never sought medical treatment for the redness
or 	perceived 	“bruising.” 	Further, 	Captain 	Weber 	provided 	the
uncontroverted affidavit which indicated that he believed the handcuffs’
safety locking mechanism was engaged which prevented the handcuffs from
becoming too tight based upon the BodyCam Video. 	This Court, therefore,
cannot conclude that excessive force was employed by Murray in the use
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of handcuffs and he is entitled to qualified immunity on this claim as
well.
In 	an 	effort 	to 	oppose 	summary 	judgment 	by 	all 	Defendants,
Plaintiff 	filed 	a 	combined 	response 	which 	set 	out 	the 	following
additional facts:
(1) 	Murray received a bad conduct discharge from the United States
Navy;
(2) 	A 	Special 	Court 	Martial 	reduced 	Murray’s 	rank 	and 	stripped
him of all medals and commendations;
(3) 	Factual discrepancies existed in Murray’s past employment and
service in applications to the Sallisaw Police Department;
(4) 	Murray denied he was convicted of a felony;
(5) 	Murray was a convicted felon;
(6) 	Murray 	could 	not 	purchase, 	use, 	or 	possess 	a 	firearm 	as 	a
convicted felon;
(7) 	The 	City 	was 	negligent 	by 	failing 	to 	conduct 	an 	adequate
background check before hiring Murray; and
(8) 	These additional facts preclude summary judgment.
Plaintiff wholly fails to draw any connection between Murray’s bad
conduct discharge from the United States Navy and the actions he took
in the traffic stop and subsequent arrest of Plaintiff. 	Simply put, the
facts cited by Plaintiff are not material to the claims asserted in this
action. 	Moreover, 	they 	are 	not 	factually 	correct 	and 	contain 	legal
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conclusions that are erroneous. 	Murray’s bad conduct discharge is not
equivalent to a civilian felony – that is reserved for a dishonorable
discharge. 	Manual 	for 	Courts-Martial, 	§1003(B) 	and 	(C). 	The
allegations were investigated by CLEET and the discharge did not serve
as a bar to Murray’s certification. 	Docket Entry No. 78, Exh. No. D.
Again, 	Plaintiff 	fails 	to 	demonstrate 	the 	materiality 	of 	these 	events
that occurred some 32 years prior to the events of October 2021.
Failure to Train and/or Supervise Claim Against the City and Franklin
The City and Franklin also move for summary judgment on the failure
to 	train 	and/or 	supervise 	claims 	asserted 	by 	Plaintiff. 	“For 	a
municipality (or sheriff, in this case) to be held liable for either a
failure-to-train 	or 	failure-to-supervise 	claim, 	an 	individual 	officer
(or deputy) must have committed a constitutional violation.” 	Estate of
Burgaz by & through Zommer v. Bd. of Cnty. Commissioners for Jefferson
Cnty. Colorado, 30 F.4th 1181, 1189–90 (10th Cir. 2022) citing Crowson
v. Washington Cnty., Utah, 983 F.3d 1166, 1187 (10th Cir. 2020) (“[A]
failure-to-train 	claim 	may 	not 	be 	maintained 	[against 	a 	municipality]
without a showing of a constitutional violation by the allegedly un-,
under-, 	or 	improperly-trained 	officer.”). 	Because 	this 	Court 	has
concluded that Murray did not violate Plaintiff’s constitutional rights,
the failure to train and failure to supervise claims against both the
City and Franklin necessarily fail. 	These Defendants are also entitled
to summary judgment.
IT IS THEREFORE ORDERED that Defendant Houston Murray’s Motion for
Summary 	Judgment 	(Docket 	Entry 	#66) 	is 	hereby 	GRANTED. 	Murray 	is
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entitled to qualified immunity for the reasons stated herein.
IT IS FURTHER ORDERED that Defendant City of Sallisaw’s and Terry
Franklin’s 	Motion 	for 	Summary 	Judgment 	(Docket 	Entry 	#67) 	is 	hereby
GRANTED.
IT IS FURTHER ORDERED that the Pretrial Conference currently set
for April 30, 2024 and the jury trial of this case set for May 13, 2024
are hereby STRICKEN.
IT IS SO ORDERED this 29 th day of April, 2024.
______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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