Vu et al v. Gibson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LAN THUY NGUYEN VU, personally 	)
and as Personal Representative for the 	)
Estate of Lich Thanh Vu, 	)
)
Plaintiffs, 	)
)
v. 	) 	Case No. CIV-25-00426-JD
)
JOSEPH D. GIBSON; and CITY OF 	)
OKLAHOMA CITY, 	)
)
Defendants. 	)
ORDER
Before the Court is Defendant Joseph D. Gibson’s Partial Motion to Dismiss (“the
Motion”). [Doc. No. 31]. Plaintiffs filed a Response. [Doc. No. 32]. Gibson filed a Reply.
[Doc. No. 33]. For the reasons outlined below, the Court grants in part and denies in part
the Motion.
I. 	BACKGROUND
Lan Thuy Nguyen Vu brings this case personally and as the personal
representative of the estate of Lich Thanh Vu (“Lich Vu”). [See Doc. No. 36].
This lawsuit arises from Lich Vu’s interaction with a police officer following a
motor vehicle accident. Lich Vu was involved in a motor vehicle accident with one other
vehicle. [Doc. No. 26 ¶¶ 9, 10]. Gibson, a police officer with the rank of sergeant with the
Oklahoma City Police Department, responded to investigate the accident. [Id. ¶¶ 8, 9].
Upon his arrival at the scene of the accident, Gibson spoke with Lich Vu, a 71-year-old
male, who was 5’4”, approximately 120 pounds, and in poor health. [Id. ¶¶ 10, 11]. Lich
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Vu spoke Vietnamese and “broken” English. [Id. ¶ 12]. Gibson issued Lich Vu a traffic
citation. [Id. ¶ 16]. Lich Vu then became frustrated and upset because he did not
understand the basis for the traffic citation. [Id. ¶ 17]. Gibson asked Lich Vu to sign the
citation, but Lich Vu refused to do so. [Id. ¶ 18]. A discussion ensued between Gibson
and Lich Vu, which resulted in Gibson pulling Lich Vu’s arms behind his back, lifting
him from the ground and slamming him face-first into the pavement with significant
force. [Id. ¶¶ 19–21, 33]. As a result, Lich Vu suffered numerous injuries, detailed in the
Second Amended Complaint. [Id. ¶¶ 40, 52–53, 58–61]. 1
Plaintiffs bring the following claims against Gibson: a Fourth Amendment claim
for excessive force pursuant to 42 U.S.C. § 1983; a claim for excessive force pursuant to
the Oklahoma Constitution, article 2, section 30; an assault and battery claim pursuant to
Oklahoma law; and a loss of consortium claim under Oklahoma law. [Doc. No. 26 ¶¶ 92–
106, 120–142]. Plaintiffs also bring claims against Defendant City of Oklahoma City
(“City”), [id. ¶¶ 107–119], which the City has answered [Doc. No. 30].
Gibson moves to dismiss Plaintiffs’ claim for excessive force pursuant to the
Oklahoma Constitution, article 2, section 30 and Plaintiffs’ claim for assault and battery.
[Doc. No. 31]. Gibson argues that article 2, section 30 does not provide a private right of
action against an individual and that Plaintiffs do not allege facts sufficient to state a
claim for assault and battery against Gibson. [Id. at 3–11].2
1 The Court notes that, pursuant to Plaintiffs’ Suggestion of Death filed with the
Court, Lich Vu passed away after the filing of this lawsuit. [See Doc. No. 34 at 1].
2 The Court uses page numbering from the CM/ECF stamp at the top of the filing
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II. 	STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although a complaint does not need detailed factual assertions, a pleading that
offers only “labels and conclusions” or “pleads facts that are merely consistent with a
defendant’s liability” will not suffice. Id. (internal quotation marks and citation omitted).
The burden is on the plaintiff to plead factual allegations that “raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555.
In evaluating a Rule 12(b)(6) motion, the Court accepts all well-pled factual
allegations as true and views the allegations in the light most favorable to the nonmoving
party. Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). Conclusory statements,
however, are not entitled to the assumption of truth, and courts are free to disregard them.
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
III. 	ANALYSIS
A. 	Plaintiffs do not state a claim against Gibson under article 2, section 30
of the Oklahoma Constitution.
The Court begins with Gibson’s Motion to Dismiss Plaintiffs’ excessive force
claim under article 2, section 30 of the Oklahoma Constitution. Section 30 provides for
on the district court docket.
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“[t]he right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches or seizures . . . .” Okla. Const. art. II, § 30. In Bosh v. Cherokee
County Building Authority, the Oklahoma Supreme Court concluded (1) that article 2,
section 30 “provides a private cause of action for excessive force” against governmental
entities and (2) that government employers can be liable under the theory of respondeat
superior when their employees are acting within the scope of their employment. 2013 OK
9, ¶ 33, 305 P.3d 994, 1004, as corrected (June 28, 2013).
Plaintiffs contend that the private right of action for violations of article 2, section
30 extends to claims against government employees in their individual capacities. [Doc.
No. 32 at 7–9]. Plaintiffs state that “[t]he issue of whether a private cause of action exists
pursuant to Okla. Const. art. 2, § 30 against a police officer acting under color of law but
outside the scope of his employment, has never been decided by the Oklahoma Supreme
Court.” [Id. at 7].
Plaintiffs predict that the Oklahoma Supreme Court would extend a private right
of action against government employees in their individual capacities. [Id. at 7–9].
However, other courts within this district have concluded that the Oklahoma
Constitution, article 2, section 30 cannot serve as a basis for a claim against state
employees individually. See Morris v. Humphrey, No. CIV-14-497-W, 2014 WL
3488895, at *2 (W.D. Okla. July 11, 2014) (dismissing article 2, section 30 claim against
a government employee in his individual capacity); Koch v. Juber, No. CIV-13-0750-HE,
2014 WL 2171753, at *2–5 (W.D. Okla. May 23, 2014) (dismissing plaintiff’s excessive
force claim under article 2, section 30 against Department of Corrections because
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individual defendants were acting outside the scope of their employment and stating
“[t]he court also finds no basis in Bosh for extending liability beyond the employer”); cf.
Doe v. Oologah-Talala Indep. Sch. Dist. No. 4 of Rogers Cnty., No. 21-CV-240-JDR-SH,
2024 WL 1357612, at *4 & n.2 (N.D. Okla. Mar. 29, 2024) (granting the individual
officer’s motion to dismiss with prejudice the Oklahoma constitutional claims because
“Bosh has since been construed to agree with prior interpretations of Oklahoma law in
finding a private right of action against Oklahoma governmental entities only”) (citing
cases); Washington v. Rogers, No. CIV-18-1116-D, 2019 WL 5191830, at *4 (W.D.
Okla. Oct. 15, 2019) (“Plaintiff’s claim under any of those constitutional provisions fails
because Bosh does not extend to individual employees.”).
In accordance with the above cases, the Court concludes that the Oklahoma
Supreme Court has not extended a private right of action under the Oklahoma
Constitution, article 2, section 30 to claims against employees acting in their individual
capacities. In the absence of authority supporting Plaintiffs’ argument, Plaintiffs have not
convinced the Court that the Oklahoma Supreme Court would extend its holding in Bosh
to such claims. 2013 OK 9, 305 P.3d 994. [See Doc. No. 32 at 7–9]. Accordingly,
Plaintiffs cannot state a claim under the Oklahoma Constitution, article 2, section 30
against Gibson.
B. 	Plaintiffs state a claim for assault and battery against Gibson.
Next, the Court addresses Gibson’s argument that Plaintiffs do not state a claim
against Gibson for assault and battery because Gibson was acting within the scope of his
employment and thus the proper defendant is the City. [Doc. No. 31 at 7–11]. Plaintiffs’
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tort claim is subject to the Oklahoma Governmental Tort Claims Act. “The GTCA is the
exclusive remedy for an injured plaintiff to recover against a governmental entity in tort.”
Tuffy’s, Inc. v. City of Okla. City, 2009 OK 4, ¶ 7, 212 P.3d 1158, 1163. “Governmental
accountability is extended to torts for which a private person would be liable, unless they
are committed outside of the course and scope of employment or unless they are
committed in bad faith or in a malicious manner.” Id.; see also 51 Okla. Stat. § 153(C).
Accordingly, if Gibson assaulted Lich Vu in the course of his employment, Plaintiffs’
exclusive remedy would be against Defendant City. See 51 Okla. Stat. § 153(C).
Gibson argues that a police officer can still be acting within the scope of his
employment when committing an assault. [Doc. No. 31 at 8–9]. Although it is not
typically within the scope of one’s employment to commit an assault, the Oklahoma
Supreme Court has acknowledged an exception to that rule when “the act is one which is
fairly and naturally incident to the business and is done while the employee is doing
employer’s business.” Tuffy’s, Inc., 2009 OK 4, ¶ 18, 212 P.3d at 1166. “An employee’s
act is also within the scope of employment if it is done, however ill-advisedly, with a
view to further the employer’s interest or arises out of an emotional response to actions
being taken for the employer.” Id.
Gibson asserts that all the factual allegations made by Plaintiffs related to the
assault and battery claim occurred while Gibson was performing his duties as a law
enforcement officer. [Doc. No. 31 at 9–10]. Gibson states that Plaintiffs do not plead
facts sufficient to demonstrate Gibson acted outside the scope of his employment. [See
id.]. However, whether Gibson’s actions occurred within the scope of his employment is
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a fact issue most appropriately resolved by the fact finder, not upon a motion to dismiss.
“Whether a police officer’s actions were taken within the scope of employment is a jury
question unless only one reasonable conclusion can be drawn from the facts alleged.”
Tuffy’s, Inc., 2009 OK 4, ¶ 20, 212 P.3d at 1167. Circumstances exist when a police
officer, although executing his duties as a law enforcement official, exceeds his or her
lawful power. For example, in DeCorte v. Robinson, the Oklahoma Supreme Court
considered whether a jury verdict awarding punitive damages against a police officer
individually impermissibly conflicted with the jury’s judgment against the City. 1998 OK
87, ¶ 14, 969 P.2d 358, 362. In that case, a police officer had pursued a car he observed
driving dangerously and ultimately subdued and handcuffed the suspect and grabbed him
by the throat while he was handcuffed in the back of the car. Id. ¶¶ 2–5, 969 P.2d at 360.
The jury returned a judgment against the City, his employer, which supported a finding
that they considered the police officer to be acting within the course of his employment
but also awarded punitive damages against the police officer individually. Id. ¶ 6, 969
P.2d at 360. The Court decided that the jury could have concluded that
[The police officer’s] initial actions may well have been taken on behalf of
his employer, and been within the scope of his duties. However, the jury
obviously determined that during the course of events his actions exceeded
that scope. While we agree with the City’s assertion that an individual
cannot simultaneously act in good faith and in a malicious manner, the jury
was clearly justified in finding that at some time during the episode [the
police officer] went beyond the bounds of good faith.
Id. ¶ 14, 969 P.2d at 362.
When viewing the facts alleged by Plaintiffs here, in the light most favorably to
Plaintiffs, Plaintiffs have stated facts upon which a jury could find that Gibson exceeded
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his authority when throwing Lich Vu to the ground. Additionally, Plaintiffs are entitled to
simultaneously plead claims against Defendant City that require that Gibson acted within
the scope of his authority, and alternatively, claims against Gibson individually that
require that he did not act within the scope of his authority. See Fed. R. Civ. P. 8(d)(2)
(“A party may set out 2 or more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense or in separate ones.”); Fed. R. Civ. P.
8(d)(3) (“A party may state as many separate claims or defenses as it has, regardless of
consistency.”). The Court, therefore, concludes that Plaintiffs have stated a claim for
assault and battery.
IV. 	CONCLUSION
For the reasons outlined above, the Court GRANTS IN PART and DENIES IN
PART Defendant Gibson’s Partial Motion to Dismiss. [Doc. No. 31]. The Court
GRANTS the Motion as it relates to Plaintiffs’ Oklahoma Constitution article 2, section
30 claim against Gibson and dismisses that claim with prejudice. The Court DENIES the
Motion as it pertains to Plaintiffs’ assault and battery claim against Gibson.
IT IS SO ORDERED this 17th day of February 2026.
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