Harris v. McCurtain County Jail Trust et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ROPER HARRIS, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 22-cv-187-RAW-DES
)
McCURTAIN COUNTY JAIL TRUST; 	)
BOARD OF COUNTY COMMISIONERS 	)
OF McCURTAIN COUNTY, OKLAHOMA; 	)
SCOTT McLAIN, individually and in his 	)
official capacity as McCurtain County Jail 	)
Administrator; KEVIN CLARDY, individually 	)
and in his official capacity as McCurtain County 	)
Sheriff; and RICHARD WILLIAMSON; 	)
ALICIA MANNING; BRANDON STANSBURY; )
JOE EBERT; and CODY JOHNSON; in their 	)
official and individual capacities, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter comes before the Court on Defendants Richard Williamson (“Defendant
Williamson”) and Alicia Manning (“Defendant Manning”), in their official and individual
capacities, and Defendant Kevin Clardy (“Defendant Clardy”), in his individual capacity’s Motion
to Dismiss Plaintiff’s First Amended Complaint, pursuant to Rule 12(b)(2), (4), (5) and (6) for lack
of personal jurisdiction due to insufficient process and insufficient service of process and for
failure to state a claim upon which relief can be granted. (Docket No. 61). On November 29, 2022,
United States District Judge Ronald A. White referred this case to Magistrate Judge Kimberly E.
West for all pretrial and discovery matters, including dispositive motions, pursuant to 28 U.S.C.
§ 636(b)(1) and Fed. R. Civ. P. 72. (Docket No. 40). On June 2, 2023, the Court Clerk reassigned
the undersigned Magistrate Judge as the referral judge for this case. 	(Docket No. 72). 	For the
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reasons set forth below, Defendants’ Motion to Dismiss should be GRANTED IN PART and
DENIED IN PART.
I. 	Background
On June 27, 2022, Plaintiff Roper Harris filed his Complaint alleging violations of the
United States Constitution, the Oklahoma Constitution, and Oklahoma law arising out of his arrest
and incarceration at the McCurtain County Jail in September of 2021. (Docket. No. 2). Plaintiff
filed his First Amended Complaint on December 5, 2022. (Docket No. 41). Plaintiff’s First
Amended Complaint alleges that, at all times relevant, Defendant Clardy was Sheriff of McCurtain
County, Oklahoma. (Docket No. 41 at ¶ 24). Plaintiff alleges that on September 15, 2021,
Defendant Clardy along with his deputies, Defendant Williamson and Defendant Manning,
arrested Plaintiff at his residence. Id at ¶76. During this arrest, Plaintiff alleges that while he was
handcuffed and not resisting he was “forcibly yanked and shoved . . . down a high, steep flight of
stairs . . . .” Id. at ¶¶ 76-79. Plaintiff alleges these actions amount to constitutionally unreasonable,
excessive and unnecessary force, and that Defendants were acting under the color of state law. Id.
at ¶ 78, ¶ 91. Furthermore, Plaintiff alleges that Defendants Clardy, Williamson, and Manning
were each aware that the force being employed was excessive and despite opportunity to do so,
failed to intervene, to prevent, and/or stop the excessive force. Id. at ¶ 94.
Defendants raise four (4) issues for the Court’s consideration in their Motion to Dismiss
Plaintiff’s First Amended Complaint: (1) service upon the Defendants was untimely (Docket No.
61 at 3-8); (2) Defendants Manning and Williamson do not have an “official capacity” under
Oklahoma Law (id. at 8-9); (3) Plaintiff has failed to state a plausible claim against Defendants in
their individual capacities under 42 U.S.C § 1983 or state tort law (id. at 9-16); and (4) Defendants
are entitled to qualified immunity (id. at 16-17).
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II. 	Analysis
a. 	Timing of Service and Permissible Extension of Time
The first issue raised by Defendants in their Motion to Dismiss Plaintiff’s First Amended
Complaint is that service upon the Defendants was untimely. (Docket No. 61 at 3-8). The
undersigned Magistrate Judge has addressed this issue in Defendant McCurtain County Jail Trust’s
Motion to Dismiss as well as the Motion to Dismiss filed by Defendants Board of County
Commissioners of McCurtain County and Kevin Clardy, in his official capacity, and found that
although the Defendants were not served within 90-days of the filing of the complaint and Plaintiff
did not show good cause sufficient to warrant a mandatory extension of time for service, the Court
nonetheless has the discretion to grant a permissible extension of time for the Plaintiff to serve.
Espinoza v. United States, 52 F. 3d 838, 841 (10th Cir. 1995). As the Defendants have not suffered
any undue prejudice for the delay in service; service was in fact effected; and the parties have
conducted a discovery conference, exchanged initial disclosures, submitted a joint status report,
and commenced discovery, the undersigned Magistrate Judge recommends that Defendants’
Motion to Dismiss for untimely service should be DENIED.
b. 	Plaintiff’s 	Official 	Capacity 	Claims 	Against 	Defendants 	Manning 	and
Williamson Should be Dismissed.
In their second issue, Defendants argue Defendants Manning and Williamson do not have
an “official capacity” under Oklahoma law because neither have final policymaking authority.
(Docket 61 at 8). Defendants argue that official capacity suits “generally represent only another
way of pleading an action against an entity of which an officer is an agent.” Id. citing Crowson v.
Washington Cty. Utah, 983 F. 3d. 116, 1173 n1. (10th Cir. 2020) (quoting Kentucky v. Graham,
473 U.S. 159, 165 (1985)). Defendants argue that for this to occur, the officer must have final
policymaking authority. Id. citing Milligan-Hitt v. Bd. of Trustees of Sheridan Cnty. Sch. Dist. No.
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2, 523 F. 3d 1219, 1223-34 (10th Cir. 2008). The Supreme Court has determined that state law
“will always direct a court to some official or body that has the responsibility for making law or
setting policy in any given area of a local government’s business.” City of St. Louis v. Praprotnik,
485 U.S. 112, 125 (1988). Defendants argue that under Okla. Stat. tit. 19 § 547, the sheriff is
responsible for the official acts of his undersheriff and deputy sheriffs. (Docket No. 61 at 9).
Therefore, Defendants argue that under Oklahoma law, the sheriff is the official charged with final
policy-making authority regarding the operation of the county Sheriff’s Office. Id. Based on this,
Defendants argue that Plaintiff has failed to state a plausible § 1983 claim against Defendants
Manning and Williamson in their official capacities and those claims should be dismissed. Id.
Plaintiff, in his response, does not disagree with the Defendants and states that the purpose
of naming Defendants Williamson and Manning in their official capacities was to impose liability
upon the governmental entity that employed them (i.e., the McCurtain County Sheriff’s Office).
(Docket No. 66 at 7). Plaintiff therefore agrees that the Court may appropriately dismiss
Defendants Manning and Williamson, in their official capacities, if the Court finds that Plaintiff
has sued the McCurtain County Sheriff’s Office directly. Id at 7-8. By suing Defendant Clardy in
his official capacity as Sheriff of McCurtain County, Plaintiff has indeed asserted claims against
the McCurtain County Sheriff’s Office. See, e.g., Hayes v. Owen, No. 22-CV-0230-CVE-SH, 2023
WL 2716579, at *6 (N.D. Okla. Mar. 30, 2023) (“Sheriff Owen, not [Lieutenant] Prentice has final
policymaking authority regarding the hiring, training, and discipline of WCSO deputies . . . . Thus,
any official capacity claims asserted against Prentice are redundant with the official capacity
claims asserted against Sheriff Owen in the arrest complaint.”).
Plaintiff maintains however, that his claims against Defendant Williamson and Manning
in their individual capacities must continue because they are alleged to have personally participated
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in the constitutional deprivations set forth in his First Amended Complaint. (Docket No. 66 at 8).
Plaintiff cites Bennett v. Passic, 545 F.2d 1260, 1262–63 (10th Cir. 1976) as support. Bennett
provides “[p]ersonal participation is an essential allegation in a § 1983 claim.” Id. citing Battle v.
Lawson, 352 F. Supp. 156 (W.D. Okla. 1972). Because both parties agree that a suit against
Defendant Williamson and Defendant Manning in their official capacity is not warranted or
necessary, 	these 	allegations 	should 	be 	dismissed. 	Therefore, 	Defendants 	Williamson 	and
Manning’s Motion to Dismiss their official capacity claims should be GRANTED.
c. 	Plaintiff has Stated a Plausible 42 U.S.C. § 1983 Excessive Force Claim
Defendants next contend that Plaintiff has failed to allege sufficient facts to state a plausible
§1983 excessive force claim against the Defendants in their individual capacities. (Docket No. 61
at 9). On a Motion to Dismiss, the court must decide whether Plaintiff has alleged “enough facts
to state a claim of relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). This does not mean all facts must be presented at the time of the complaint, but
merely that the complaint must “give the defendant fair notice of what the claim . . . is and the
grounds upon which it rests.” Id. at 555 (quotation omitted). It is not enough for the plaintiff to
plead facts “merely consistent” with the defendant’s liability – “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft
v. Iqbal 556 U.S. 662, 678 (2009). Instead, a plaintiff must state enough facts to nudge his claims
“across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
Defendants argue that for them to be liable under § 1983, Plaintiff must establish that the
Defendants “‘acted under color of state law and caused or contributed to the alleged violation.’”
(Docket No. 61 at 9) (quoting Jenkins v. Wood, 81 F. 3d 988, 994 (10th Cir. 1996)). As set forth
above, personal participation is essential to find liability. 	Thus, Plaintiff must demonstrate
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Defendants acted under color of state law and that they personally participated in the alleged
constitutional violation(s). Bruner v. Baker, 506 F.3d 1021, 1026 (10th Cir. 2007); Foote v.
Spiegel, 118 F. 3rd 1416, 1423 (10th Cir. 1997). For liability to arise under § 1983, a defendant’s
direct personal responsibility for the claimed deprivation of a constitutional right must be
established. Novitsky v. City of Aurora, 491 F.3d 1244, 1254 (10th Cir. 2007).
Defendants argue that Plaintiff’s complaint fails to provide sufficient factual allegations to
raise a plausible claim that any of the Defendants violated Plaintiff’s constitutional rights by using
excessive force. (Docket No. 61 at 11). Despite noting Plaintiff’s allegation that Defendants used
excessive and unnecessary force against him after he was handcuffed and not resisting by forcibly
yanking and shoving him down a flight of stairs and violently throwing him down face-first into
the concrete sidewalk, (Docket No. 41, ¶¶ 79-80), Defendants claim Plaintiff’s allegations are
wholly conclusory and are not supported by any specific, non-conclusory allegations of fact.
(Docket No. 61 at 11).
Defendants argue that because Plaintiff notes that Defendants or “any one or combination
of them, engaged in these actions,” Plaintiff provides no isolated facts as to what each of the
individual Defendants is alleged to have done. Id. According to Defendants, these collective
allegations are insufficient to state a plausible claim for excessive force under § 1983. Defendants
base this argument on Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008) and state that the
Court in Robbins held, “that to plead a plausible claim in a case that is subject to a qualified
immunity defense, so as to survive a motion to dismiss, the plaintiffs must allege facts sufficient
to show, assuming they are true, that defendants plausibly violated plaintiffs’ constitutional rights.”
(Docket No. 61 at 11) (citing Robbins, 519 F.3d at 1249). Where the complaint fails to isolate the
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alleged unconstitutional acts of each defendant, it does not provide adequate notice as to the nature
of the claims against each. Robbins, 519 F.3d at 1250.
In Robbins, suit was brought by the parents of an eight-month-old (Renee) who died at the
hands of her caretaker. This caretaker was recommended to the parents and subsidized by the
Oklahoma Department of Human Services (“OKDHS”). Plaintiffs brought the suit alleging § 1983
violations of Renee’s constitutional rights and various other torts in connection with her death. The
suit named OKDHS along with three individual OKDHS workers. The Tenth Circuit held that the
case should be dismissed for failure to state a claim upon which relief can be granted. Id. at 1253-
54).
The Court determined that “[w]ithout some factual allegation in the complaint, it is hard to
see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature
of the claim, but also ‘grounds' on which the claim rests.”” Id. at 1248 (quoting Twombly, 550 U.S.
at 555 n.3). The Court in Robbins also determined that the degree of specificity necessary to
establish plausibility and fair notice, and therefore the need to include sufficient factual allegations,
depends on context: “Context matters in notice pleading.” Id. In Robbins, the context was a claim
of qualified immunity by state officials or employees who were sued for damages in their personal
capacity for injuries to a child inflicted by a third party. The complaint failed to isolate the alleged
unconstitutional acts of each defendant, but instead alleged that “‘Defendants’ . . . ‘instruct[ed] the
Plaintiffs to place Renee Dawn Robins in a specific Daycare’; ‘Defendants’. . . ‘assert[ed] control
over such Daycare’” Id. at 1250. The complaint made no mention of which, if any, defendant had
direct contact with Renee or her parents, and did not specify how the defendants who did not have
direct contact might be individually liable for deprivations of Renee’s constitutional rights. Id.
“Given the complaint's use of either the collective term ‘Defendants’ or a list of the defendants
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named individually but with no distinction as to what acts are attributable to whom, it is impossible
for any of these individuals to ascertain what particular unconstitutional acts they are alleged to
have committed.” Id.
The case at bar is distinguishable from Robbins in that Plaintiff does not use the collective
term “Defendants” but does in fact indicate which Defendants are alleged to do what. Plaintiff
supports his allegations of excessive use of force against Defendants Manning and Williamson
with specific facts that, if taken as true, state “enough facts to state a claim of relief that is plausible
on its face,” Twombly, 550 U.S. at 570, and “give the defendant fair notice of what the claim . . .
is and the grounds upon which it rests.” Id. at 555 (quotation omitted). It is clear that Plaintiff’s
Amended Complaint does in fact provide sufficient information to provide not only fair notice of
the nature of the claim, but also grounds on which the claim rests.
The Tenth Circuit has opined that in use of force cases, the district court may perform an
individualized analysis of the officer’s action, or where appropriate, analyze the aggregated officer
conduct. See, e.g., Est. of Booker v. Gomez, 745 F.3d 405, 421 (10th Cir. 2014). Where the facts
allege defendants actively and jointly participated in the use of force and/ or a defendant present
could be liable under a failure-to-intervene theory, the court does not need to conduct an
individualized analysis of the defendants’ involvement in order to determine whether excessive
force was used. Id at 423.
Plaintiff alleges that Defendants Clardy, Manning, and Williamson were the officers who
were present and participated in the arrest of Plaintiff at his home on September 15, 2021, and that
while Plaintiff was restrained and not exhibiting resistance, forcibly yanked and shoved Plaintiff
down a high, steep flight of stairs and any one or a combination of Defendant Clardy, Williamson,
and Manning unnecessarily and without provocation violently threw [Plaintiff] down, slamming
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him into the concrete. (Docket No. 41, ¶¶ 76-80). Plaintiff further alleges that “Defendants Clardy,
Williamson, and/or Manning each keenly aware that the force being employed was excessive and
despite ample opportunity failed to intervene to prevent and/or stop each other from using
excessive and unreasonable force . . .” Id. at ¶ 94. These facts, taken in context with the rest of the
Plaintiff’s Complaint, present sufficient information to give fair notice to Defendants Clardy,
Williamson, and Manning of the nature of the claims, and the grounds on which the claims rests.
As such, the undersigned Magistrate Judge recommends that Defendants’ Motion to Dismiss
Plaintiff’s 42 U.S.C. § 1983 Excessive Force Claims should be DENIED.
d. 	Defendants are not Immune from Plaintiff’s State Law Excessive Force
Claims
The undersigned Magistrate Judge next turns to Defendants’ claims that they are immune
from suit under Oklahoma law. (Docket No. 61 at 15). Okla. Stat. tit. 51 § 152.1 provides sovereign
immunity for “[t]he state, its political subdivisions, and all of their employees acting within the
scope of their employment” and notes that they “shall be immune from liability for torts.” Okla.
Stat. tit. 51 § 152.1(A). This immunity, however, is subject to a waiver to the extent and in the
manner provided in the Governmental Tort Claim Act (“GTCA”). Id. at § 152.1(B). Defendants
argue that under the GTCA, specifically § 153(C), they cannot be named as a defendant if they
were acting within the scope of employment. However, the GTCA defines the term “scope of
employment” as “performance by an employee acting in good faith within the duties of the
employee's office or employment or of tasks lawfully assigned by a competent authority . . . .”
Okla. Stat. tit. 51, § 152(12). As such, courts have found that “[a]n act of the employee is not in
the scope of employment if the employee acted maliciously or in bad faith.” Pellegrino v. State ex
rel. Cameron Univ., 63 P.3d 535, 537 (Okla. 2003).
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While Defendants indicate that Plaintiff’s allegations are “wholly conclusory, and are not
supported by any specific allegations of fact,” (Docket No. 61, at 16), the undersigned Magistrate
Judge disagrees. The factual allegations presented by Plaintiff “‘raise an inference of bad faith
sufficient to withstand dismissal pursuant to the GTCA.’”1 Doe v. Oologah-Talala Indep. Sch.
Dist., No. 21-CV-240-TCK-SH, 2022 WL 17406372, at *11–12 (N.D. Okla. Dec. 2, 2022)
(quoting Romero v. City of Miami, 8 F. Supp. 3d 1321, 1333 (N.D. Okla. 2014); see also Gowens
v. Barstow, 364 P.3d 644, 652 (Okla. 2015) (rejecting the proposition that “malice or bad faith can
never be inferred from conduct exhibiting reckless disregard for the rights of others”); Shepard v.
CompSource Okla., 209 P.3d 288, 293 (Okla. Civ. App. 2009) (“[A]cts contrary to the interests of
the employer are not within the scope of employment.”). Finally, courts have repeatedly noted that
“‘while [the scope-of-employment] issue may be adjudicated upon consideration of a summary
judgment motion, it cannot properly be determined in a motion to dismiss.’” Doe, 2022 WL
17406372, at *11–12, (quoting Pendegraft v. Bd. of Regents of Okla. Colls., No. 18-CV-793-D,
2019 WL 3806639, at *6 (W.D. Okla. Aug. 13, 2019)).
For these reasons, the undersigned Magistrate Judge recommends that Defendants’ Motion
to Dismiss Plaintiff’s state law excessive force claims should be DENIED.
e. 	Defendants Are Not Entitled to Qualified Immunity at This Stage.
Finally, Defendants argue they are entitled to qualified immunity from Plaintiff’s § 1983
claims against them in their individual capacities. Qualified immunity “protects government
officials ‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
1Plaintiff alleges the use of force upon him was done “maliciously, sadistically, and/or [for] the very purpose of
causing [him harm].” This inference can be drawn from the allegation that Plaintiff at the time of the harm was
restrained and not resisting, and therefore was not in a “good faith effort to restrain [him] or otherwise maintain
control of him.” (Docket No. 41, ¶¶77-82).
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Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). This doctrine is intended “to shield officials from harassment, distraction, and liability
when they perform their duties reasonably,” while also ensuring that officials who “exercise power
irresponsibly” are held accountable. Id. Defendants state that they are “‘entitled to qualified
immunity unless it is demonstrated that their conduct violated clearly established constitutional
rights of which a reasonable person in their positions would have known.’” (Docket No. 61 at 16)
(quoting Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251 (10th Cir. 1999)). Defendants argue that
since Plaintiff has failed to state a plausible § 1983 claim against the Defendants in their individual
capacities, they are entitled to qualified immunity. Id. at 17.
“When qualified immunity is asserted in the context of a motion to dismiss, the factual
allegations of the complaint are assumed to be true, and the court’s analysis generally aligns with
the analysis applied with determining the sufficiency of a claim.” Harper v. Woodward Cnty. Bd.
of Cnty. Comm’rs, No. CIV-11-0996-HE, 2014 WL 7399367, at *8 (W.D. Okla. Dec. 29, 2014)
citing Brown v. Montoya, 662 F.3d1152, 1162-64 (10th Cir. 2011) and Iqbal, 556 U.S. at 666, 673-
75, 677-84. 	The Court scrutinizes “the defendant’s conduct as alleged in the complaint . . . for
objective legal reasonableness” at the motion to dismiss stage. Turner v. Oklahoma Cnty. Bd. of
Cnty. Comm’rs, No. 19-6092, 804 F. App’x 921, 924 (10th Cir. 2020) (unpublished). Thus, when
a defendant raises a qualified immunity defense in response to a motion to dismiss, the court uses
a two-part test to determine whether the plaintiff: (1) plausibly pleaded that the defendant violated
a constitutional right, and (2) shows that the constitutional right was clearly established at the time
of the defendant’s alleged misconduct. A.N. ex rel. Ponder v. Styling, 928 F.3d 1191, 1196 (10th
Cir. 2019).
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The constitutional violations Plaintiff alleges are use of excessive force in violation of the
Fourth and Fourteenth Amendments to the U.S. Constitution. (Docket No. 66 at 9). Different
standards govern excessive force claims brought under the Fourth and Fourteenth Amendments.
“The Fourth Amendment is applicable to instances of alleged excessive force ‘leading up to and
including an arrest’ under that amendment's prohibition against unreasonable seizures.” Spradlin
v. City of Owasso, No. 12-CV-497-JED-FHM, 2014 WL 1664974, at *7 (N.D. Okla. Apr. 25,
2014) (quoting Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010)). If the plaintiff can establish
that “the officers used greater force than would have been reasonably necessary to effect a lawful
arrest,” a Fourth Amendment excessive force claim exists. Fisher v. City of Las Cruces, 584 F.3d
888, 893–94 (10th Cir. 2009). Claims of excessive force under the Fourth Amendment are
analyzed under an objective reasonableness standard. Spradlin, 2014 WL 1664974, at *7. In
contrast, the Fourteenth Amendment governs any claim of excessive force brought by an arrestee
or pretrial detainee.2 See Porro, 624 F.3d at 1326. To determine whether a use of force is excessive
under the Fourteenth Amendment, the courts consider three factors: “(1) the relationship between
the amount of force used and the need presented; (2) the extent of the injury inflicted; and (3) the
motives of the state actor.” Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir. 2003).
The allegations of the First Amended Complaint, if true, state plausible claims of excessive
force under both the Fourth and Fourteenth Amendments. Plaintiff alleges that Defendants
“restrained [him] by cuffing his wrists behind his back.” (Docket No. 41 at ¶ 77). While restrained
and despite any physical resistance, Plaintiff alleges Defendants “forcibly yanked and shoved
[him] down a high, steep flight of stairs . . . in an exceedingly rough and dangerous manner
2 A pretrial detainee is an individual who has had “a judicial determination of probable cause as a prerequisite to [the]
extended restraint of [his] liberty following arrest.” Bell v. Wolfish, 441 U.S. 520, 536 (1979) (quoting Gerstein v.
Pugh, 420 U.S. 103, 114 (1975)).
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intended to cause [him] to lose his balance, fall, and suffer injury.” Id. at ¶¶ 78-79. Furthermore,
Plaintiff alleges that despite the fact he was “securely handcuffed and posing no resistance,
Defendants . . . 	unnecessarily and without provocation violently threw Harris down, slamming
him face-first into the concrete sidewalk.” Id. at ¶ 80. Accepting the allegations as true and
construing them in the light most favorable to the Plaintiff, the force alleged to have been used on
Plaintiff during his arrest would amount to objectively unreasonable force. Furthermore, the
allegations indicate that the amount of force used was contraindicated based on the Plaintiff’s
restraint and lack of resistance. Plaintiff further alleges that the “Defendants’ use of force on [him]
was done maliciously, sadistically, and/or [for] the very purpose of causing harm to Plaintiff.”
(Docket No. 41 at ¶¶ 81-82). These allegations, if true, show actions that were unconstitutional
under clearly established law.
In order for the law to be clearly established, “there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight of authority from other circuits must
have found the law to be as the plaintiff maintains.” Est. of Booker, 745 F.3d at 427 (citing Fogarty
v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008)). “A [deputy’s] conduct violates clearly
established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable [deputy] would [have understood] that what he is doing
violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2001) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). A case directly on point is not required, “but existing precedent must
have placed the statutory or constitutional question beyond debate.” Id. The Tenth Circuit has
developed “‘a sliding scale to determine when law is clearly established’ in which ‘[t]he more
obviously egregious the conduct in light of prevailing constitutional principles, the less specificity
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is required from prior case law to clearly establish the violation.’” Est. of Booker, 745 F.3d 405 at
427 (quoting Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2014).
Accepting the allegations as true and construing them in the light most favorable to the
Plaintiff; at this time, the undersigned Magistrate Judge finds Plaintiff has alleged conduct that
would violate a Fourth or Fourteenth Amendment right that was clearly established in September
2021. 	Therefore, Defendants’ Motion to Dismiss based on qualified immunity should be
DENIED.
Accordingly, the undersigned Magistrate Judge recommends that Defendant’s Motion to
Dismiss (Docket No. 61) should be GRANTED IN PART as to Defendants Williamson and
Manning in their official capacities but otherwise DENIED. 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). Any objections and response shall each be limited to 10 pages and a reply is permitted only
with leave of court upon a showing of good cause.
IT IS SO ORDERED this _______ day of ________________, 2023.
____________________________________
D. Edward Snow
United States Magistrate Judge
6th September
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