FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF OKLAHOMA (D.C. NO. 6:16-CV-00115-JHP)
Spencer Bryan (Steven J. Terrill with him on the briefs),
Bryan & Terrill Law, PLLC, Tulsa, Oklahoma, for
Stephen L. Geries, Collins Zorn & Wagner, P.C., Oklahoma
City, Oklahoma, for Appellees Board of County Commissioners
of the County of Wagoner and Vicki Holland.
Randall J. Wood (Robert S. Lafferrandre and Jessica L. Dark
with him on the brief), Pierce Couch Hendrickson Baysinger
& Green, L.L.P., Oklahoma City, Oklahoma, for Appellee
TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
TYMKOVICH, CHIEF JUDGE.
case involves an encounter between law enforcement and a
schizophrenic individual suffering a psychotic episode.
Officers from the Wagoner County Sheriff's Department
responded to a call from Gary Clark's brother, who was
having troubling restraining him. The Sheriff's
Department, in turn, requested help from the neighboring
Broken Arrow Police Department. The Broken Arrow officers
tried to subdue Clark through nonlethal means. Those means
failed. The officers thus resorted to lethal force, shooting
Clark as he charged them with a large kitchen knife. Clark
ultimately survived his gunshot wounds, but still has not
now brings this lawsuit claiming numerous violations of his
constitutional, federal-statutory, and state-common-law
rights. As relevant here, the district court granted summary
judgment to the Wagoner County Board of Commissioners,
Wagoner County Sheriff Robert Colbert, and former Wagoner
County Jail Nurse Vicki Holland on Clark's claims against
affirm. Given the undisputed facts, a reasonable jury could
not find the officers violated Clark's Fourth Amendment
right to be free from excessive force. In addition, Clark has
failed to adequately brief issues necessary to justify
reversal on his Oklahoma-tort and Americans with Disabilities
Act (ADA) claims. Finally, Clark has not marshaled evidence
sufficient to prove he received constitutionally inadequate
medical care while incarcerated.
recount the facts in greater detail as they relate to our
analyses of the specific claims at issue. In broad strokes,
however, this lawsuit arises from the arrest and detention of
Gary Clark. Clark suffers from schizophrenia. His brother
helps him manage his illness. As part of this arrangement,
Clark lives in a small cottage on his brother's property
in Wagoner County, Oklahoma. On August 18, 2014, Clark's
brother went to check on Clark in the cottage. Caught in the
midst of a psychotic episode, Clark lunged at his brother
with a large kitchen knife, causing a small cut. Clark's
brother called the Sheriff's Department. In the ensuing
confrontation between Clark and local law enforcement, the
officers used progressively severe tactics to secure
Clark's arrest. This culminated in the officers shooting
Clark as he charged them with the knife. Clark was taken to
the hospital for emergency care. He later received ongoing
medical attention as he recovered from his wounds in the
Wagoner County Jail.
his release, Clark sued. He raised numerous claims stemming
from his arrest and incarceration, five of which relate to
this appeal. First, Clark alleged Wagoner County
Sheriff Robert Colbert-in both his personal and official
capacities-violated Clark's Fourth Amendment right
against unreasonable seizures. Second, Clark claimed
a right to recover against the Wagoner County Board of
Commissioners under Oklahoma tort law for the same police
conduct. Third, Clark claimed entitlement to relief
from the County Board under the ADA for the Board's
alleged failure to properly train its officers to accommodate
mentally ill arrestees. Finally, Clark claimed a
right to recover from Nurse Practitioner Vicki Holland for
her allegedly inadequate treatment of his injuries in the
Wagoner County Jail.
contends the district court erred in granting summary
judgment on his claims of excessive force, Oklahoma tort
liability, ADA liability, and inadequate medical treatment.
review district court grants of summary judgment de novo.
White v. York Int'l Corp., 45 F.3d 357, 360
(10th Cir. 1995). In so doing, we ask the same question the
district court asked: Has discovery yielded a "genuine
dispute" of "material fact" or is the moving
party "entitled to judgment" on the claim at issue
without any need to weigh evidence? Fed.R.Civ.P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). A genuine dispute arises where the available
evidence would allow a rational jury to accept either
party's allegation of a particular fact. See Tabor v.
Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). But
only facts that "could have an effect on the
outcome" of a claim qualify as "material."
Id. (quoting EEOC v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)). We
construe all evidence and draw all inferences in the
nonmovant's favor at this stage. See, e.g.,
EagleMed LLC v. Cox, 868 F.3d 893, 899 (10th Cir.
that standard of review in mind, we turn to Clark's
The Excessive Force Claim
Fourth Amendment prohibits state and federal governments from
making "unreasonable . . . seizures." U.S. Const.
amend. IV; see Terry v. Ohio, 392 U.S. 1, 8, 27
(1968) (applying the Fourth Amendment unreasonable seizure
provision to the states through the Fourteenth Amendment).
When state police violate this guarantee by using excessive
force, federal law provides a right of action to the victim.
See 42 U.S.C. § 1983; Graham v.
Connor, 490 U.S. 386, 395 (1989); see also Cordova
v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009)
excessive force claim must clear the Fourth Amendment's
"'objective reasonableness' standard."
Cordova, 569 F.3d at 1188. That standard asks
whether the police employed objectively reasonable force
given the totality of the circumstances. See Thomson v.
Salt Lake Cty., 584 F.3d 1304, 1313 (10th Cir. 2009). We
apply this test with an eye toward "balancing . . .
'the nature and quality of the intrusion on the
individual's Fourth Amendment interests' against the
countervailing governmental interests at stake.'"
Graham, 490 U.S. at 396 (quoting Tennessee v.
Garner, 471 U.S. 1, 8 (1985)).
to the specific circumstances of the confrontation in
evaluating these interests. See, e.g., Kisela v.
Hughes, 138 S.Ct. 1148, 1152 (2018) (per curiam);
Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th
Cir. 2008); Sevier v. City of Lawrence, 60 F.3d 695,
699 (10th Cir. 1995). And the Supreme Court has itself
highlighted the importance of (1) "the severity of the
crime at issue," (2) "whether the suspect poses an
immediate threat to the safety of the officers or
others," and (3) "whether he is actively resisting
arrest or attempting to evade arrest by flight."
Graham, 490 U.S. at 396. Nevertheless, the test is
ultimately holistic and open-ended. See Cty. of L.A. v.
Mendez, 137 S.Ct. 1539, 1546 (2017); Tenorio v.
Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015).
Importantly, though, the fact-finder must adopt "the
perspective of a reasonable officer on the scene, rather than
[assuming] the 20/20 vision of hindsight."
Graham, 490 U.S. at 396.
has sued Sheriff Colbert in both his personal and official
capacities for the police officers' use of force in this
case. Clark's failure to prove an underlying
constitutional violation, however, justifies summary judgment
on both ...