Case No.
DOUGLAS G. DRY,
JUANITA MCCONNELL and
ROSIE BURLISON,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
BRUCE BABBITT, in his official capacity
as Secretary of Interior, ADA E. DEERE,
in her offical capacity as Assistant
Secretary of Interior for Indian
Affairs, JIM FIELDS, in his official
capacity as the successor Muskogee
Area BIA Director, PERRY PROCTOR,
in both his official and individual
capacities, DENNIS SPRINGWATER,
in both his official and individual
capacities, KAREN KETCHER, in both her
official and individual capacities,
CURTIS WILSON, in his official
capacity as the BIA Contracts Officer,
LARRY MINGS, in both his official and
individual capacities,
BOB RABON, in both his official
and individual capacities, ROBERT L.
RABON, in both his official
and individual capacities,
KIM REED, in both her official
and individual capacities,
HOPPY DENISON, in both his official
and individual capacities,
BILL BARROW, in both his official
and individual capacities,
MIKE RUSSELL, in both his official
and individual capacities,
STEVEN FLOWERS, in both his official
and individual capacities,
CHRIS WELCH, in both his official
and individual capacities,
KENNETH JOHNSON, in both his official
and individual capacities,
BLAKE JOHNICO, in both his
official and individual capacities,
CITY OF TALIHINA, JACK ENGLAND, in
both his official and individual
capacities, MALCOMB WADE, in both his
official and individual capacities,
NIKY HIBDON, in both her official and
individual capacities, LLOYD JAMES,
in both his official and individual
capacities, JOHN WHEAT, in both his
official and individual capacities,
NAOMI O'DANIELS, in both her official
and individual capacities,
CITY OF CLAYTON, TERRY BELL, in both
his official and individual capacities,
ROWLAND HALL, in both his official and
individual capacities, MIKE VAN HORN,
in both his official and individual
capacities, DARREL KIRKES, in both
his official and individual capacities,
REBECCA JOHNSON, in both her official
and individual capacities, JIMMY LONG,
in both his official and individual
capacities,
Defendants.
Comes now the Plaintiffs, DOUGLAS G. DRY, JUANITA MCCONNELL and ROSIE BURLISON, and for their complaint states the following:
1. This is a civil action seeking damages against the Defendants for committing acts, under color of law, which deprived Plaintiffs of rights secured under the constitution, laws and treaties of the United States; for conspiring for the purpose of impeding and hindering the due course of justice, with the intent to deny Plaintiffs due process of law, equal protection of the law, and for refusing and neglecting to prevent such deprivations and denials to Plaintiffs. Additionally, federal tort claims as well as State of Oklahoma tort claims are plead against the Defendants.
2. Jurisdiction: This is an action brought by the Plaintiffs
pursuant to the First, Fourth, Fifth, and Fourteenth Amendments
to the United States Constitution, Treaties between the Choctaw
people and the United States, and laws of the United States for
the purpose of determining a question of actual controversy between
the parties as hereinafter more fully appears. This court has
original jurisdiction under 42 U.S.C.A. Section 1983 and 28 U.S.C.A.
Sections 1331, 1343 and 1346. State of Oklahoma pendant, supplemental
and ancillary claims are additionally plead by way of 28 U.S.C.A.
Section 1367.
3. Venue: Venue property lies in the Eastern District of
Oklahoma under 28 U.S.C.A. Section 1331(e) because the events
that give rise to the Plaintiff claims occurred within this district
and all parties, with the exception of Defendants Secretary of
Interior Bruce Babbitt and Assistant Secretary of Interior for
Indian Affairs, Ada E. Deere, reside within this district.
4. Plaintiff, Douglas G. Dry, is a resident of the City of
Wilburton, and a citizen of the Choctaw Nation of Oklahoma, State
of Oklahoma, and the United States of America.
5. Plaintiff, Juanita McConnell, is a resident of the City of
Tuskahoma, and a citizen of the Choctaw Nation of Oklahoma, State
of Oklahoma, and the United States of America.
6. Plaintiff, Rosie Burlison, is a resident of the City of Atoka,
and a citizen of the Choctaw Nation of Oklahoma, State of Oklahoma,
and the United States of America.
7. Defendant, United States of America.
8. Defendant, Bruce Babbitt, is the Secretary for the Department
of Interior and delegated by Congress of the United States to
administer Indian Affairs.
9. Defendant, Ada E. Deere, is the Assistant Secretary for the
Department of Interior, as head of the Bureau of Indian Affairs.
10. Defendant, Jim Fields, is the successor Muskogee Area Director
for the Bureau of Indian Affairs.
11. Defendant, Perry Proctor, is currently and was the Bureau
of Indian Affairs, Muskogee Area Office, Criminal Investigator
at all times relevant to this complaint.
12. Defendant, Dennis Springwater, is currently and was the Bureau
of Indian Affairs, Muskogee Area Office, Tribal Operations Officer
at all times relevant to this complaint.
13. Defendant, Karen Ketcher, is currently and was the Bureau
of Indian Affairs, Muskogee Area Office, Tribal Operations Specialist
at all times relevant to this complaint.
14. Defendant, Curtis Wilson, is currently and was the Bureau
of Indian Affairs, Muskogee Area Office, Contracts Officer at
all times relevant to this complaint.
15. Defendant, Larry Mings, is the Bureau of Indian Affairs Superintendent
for the Talihina Agency which encompassed the area where in all
acts Plaintiffs complained of occurred.
16. Defendant, Bob Rabon, is currently and was the Tribal Attorney
for the Choctaw Nation at all times relevant to this complaint.
17. Defendant, Robert L. Rabon, is currently and was the Prosecutor
for the Choctaw Nation Court of Indian Offenses and acted in that
capacity at all times relevant to this complaint.
18. Defendant, Kim Reed, is currently and was Director of Law
Enforcement Operations for the Choctaw Nation at all times relevant
to this complaint and had supervisory power of the Defendant police
officers in this action.
19. Defendant, Hoppy Denison, is currently and was Chief of Tribal
Police for Choctaw Nation at all times relevant to this complaint
and had direct supervisory control of the Defendant police officers
at all times relevant to this complaint.
20. Defendant, Bill Barrow, is currently and was a Tribal Police
Officer with the Choctaw Nation at all times relevant to this
complaint.
21. Defendant, Mike Russell, is currently and was a Tribal Police
Officer with the Choctaw Nation at all times relevant to this
complaint.
22. Defendant, Steven Flowers, is currently and was a Tribal Police
Officer with the Choctaw Nation at all times relevant to this
complaint.
23. Defendant, Chris Welch, is currently and was a Tribal Police
Officer with the Choctaw Nation at all times relevant to this
complaint.
24. Defendant, Kenneth Johnson, was a security officer with the
Choctaw Nation at all times relevant to this complaint.
25. Defendant, Blake Johnico, was a security officer with the
Choctaw Nation at all times relevant to this complaint.
26. Defendant, City of Talihina, is a municipal corporation, organized
under the laws of the State of Oklahoma.
27. Defendant, Jack England, is currently and was Chief of Police
for the City of Talihina at all times relevant to this complaint.
28. Defendant, Malcomb Wade, was Mayor for the City of Talihina
at all times relevant to this complaint.
29. Defendant, Niky Hibdon, was the Vice-Mayor for the City of
Talihina at all times relevant to this complaint.
30. Defendant, LLoyd James, was a member of the city council for
the Defendant City of Talihina.
31. Defendant, John Wheat, was a member of the City Council for
the City of Talihina at all times relevant to this complaint.
32. Defendant, Naomi O'Daniels, was a member of the City Council
for City of Talihina at all times relevant to this complaint.
33. Defendant, City of Clayton, is a municipal corporation, organized
under the laws of the State of Oklahoma.
34. Defendant, Terry Bell, is currently and was Chief of Police
for the City of Clayton at all times relevant to this complaint.
35. Defendant, Rowland Hall, is currently and was the Mayor of
the City of Clayton, State of Oklahoma, at all times relevant
to this complaint.
36. Defendant, Mike Van Horn, is currently and was a member of
the City Council for the City of Clayton at all times relevant
to this complaint.
37. Defendant, Darrel Kirkes, is currently and was a member of
the City Council for the City of Clayton at all times relevant
to this complaint.
38. Defendant, Rebecca Johnson, is currently and was a member
of the City Council for the City of Clayton at all times relevant
to this complaint.
39. Defendant, Jimmy Long, is currently and was a member of the
City Council for the City of Clayton at all times relevant to
this complaint.
40. Plaintiffs sue each and all defendants with the exception
of the United States of America, Bruce Babbitt, Ada E. Deere,
Jim Fields, Curtis Wilson and the Cities of Talihina and Clayton,
in both their official and individual capacities.
41. At all times material to this complaint, Defendants' United
States of America, Bruce Babbitt, Ada E. Deere, Jim Fields, Perry
Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson, Larry
Mings, Kim Reed, and Hoppy Denison, acted under the color of statutes,
customs, regulations, ordinances, Code of Federal Regulations
and useage of the Bureau of Indian Affairs and their actions arise
directly under federal laws and the Constitution of the United
States.
42. At all times material to this complaint, Defendants' Bill
Barrow, Mike Russell, Steven Flowers, Chris Welch, Kenneth Johnson,
and Blake Johnico, acted under the color of statutes, customs,
regulations, ordinances, Code of Federal Regulations and useage
under the authority granted to them by the Bureau of Indian Affairs
and their actions also arise directly under federal laws and the
Constitution of the United States.
43. At all times material to this complaint, Defendants, City
of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James,
John Wheat and Naomi O'Daniel, acted under the color of statutes,
customs, ordinances and useage of the State of Oklahoma.
44. At all times material to this complaint, Defendants City of
Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes,
Rebecca Johnson, and Jimmy Long acted under the color of statutes,
customs, ordinances and useage of the State of Oklahoma.
45. On or about the 4th day of September, 1995, in the morning
hours, Plaintiff, Douglas G. Dry, was attending the Labor Day
festivities at Tuskahoma, Oklahoma.
46. Plaintiff, Douglas G. Dry, had on his possession items of
literature which expressed opinions concerning matters of public
concern.
47. Defendants Hoppy Denison, Mike Russell, Steven Flowers, Kenneth
Johnson, and Blake Johnico, approached the Plaintiff, Douglas
G. Dry, forceably restrained the Plaintiff, Douglas G. Dry, placed
Plaintiff Douglas G. Dry under arrest, refused to tell Plaintiff
Douglas G. Dry why he was under arrest and seized the literature
he was carrying.
48. Defendants Hoppy Denison, Mike Russell, Steven Flowers, Kenneth
Johnson, and Blake Johnico beat, dragged and bodily removed Plaintiff
Douglas G. Dry from this location, near Tuskahoma, Oklahoma, without
provocation, need, or explanation, and transported Plaintiff Douglas
G. Dry to the Talihina Police Department located in the City of
Talihina, Oklahoma, arriving there in the morning hours of September
4, 1995.
49. While at the Tuskahoma grounds, Defendants Mike Russell and
Steven Flowers, assaulted and beat brutally Plaintiff Douglas
G. Dry, slamming his head onto the tribal police car, the Plaintiff
Douglas G. Dry then being in police custody, unarmed, and unable
to resist Defendants.
50. As a result of the unlawful arrest and assault by the Defendants
Hoppy Denison, Mike Russell, Steven Flowers, Kenneth Johnson and
Blake Johnico, the Plaintiff Douglas G. Dry suffered lacerations
about his head and injuries to his body.
51. The Plaintiff, Douglas G. Dry, was wrongfully incarcerated
in the Talihina City Jail, September 4, 1995 for over two hours
while Defendant Hoppy Denison conspired with tribal attorney Bob
Rabon, as to what criminal charges could justify the illegal acts
of the Defendant police officers.
52. The Plaintiff, Douglas G. Dry, never received any information
as to why he was arrested for several hours, until after being
transported from the Talihina City Jail back to Tuskahoma Tribal
Grounds for a Court of Indian Offenses court appearance.
53. The Defendants, Bob Rabon and Robert L. Rabon, made statements
in their capacity as tribal officials that Plaintiff Dry had been
arrested for passing out the literature described above. Additionally,
the Defendant, Robert L. Rabon, made statements in his capacity
as the federal Bureau of Indian Affairs prosecutor that Plaintiff
Dry had been arrested for passing out literature.
54. Later on or about September 14, 1995 the Plaintiff, Douglas
G. Dry, was wrongfully and maliciously charged in The Choctaw
Court of Indian Offenses by Defendant Robert L. Rabon, with seven
offenses in CR-95-05, Count I: Public Disburbance; Count II: Disturbance
of a Parade; Count III: Disburbance of the Peace; Count IV: Use
of language calculated to arouse anger [Breach of the Peace];
CR-95-1, Count I: Assault on a Police Officer; Count II: Attempt
to Intimidate an Officer; CR-95-2, Resisting Arrest.
55. The criminal charges described in paragraph 54 above have
yet to be resolved.
56. The Choctaw Nation did not have the authority or the jurisdiction
to prescribe the conduct for which the Plaintiff, Douglas G. Dry,
was arrested, and therefore the actions of the Defendants Hoppy
Denison, Mike Russell, Steven Flowers, Kenneth Johnson, and Blake
Johnico, were pursuant to the authority of the Bureau of Indian
Affairs which places this conduct directly under the Constitution
of the United States.
57. As a result of their concerted unlawful and malicious arrest
of Plaintiff Dry for exercising his rights under the First Amendment
of the United States Constitution, the Defendants Hoppy Denison,
Mike Russell, Steven Flowers, Kenneth Johnson, and Blake Johnico,
intentionally, or with deliberate indifference and callous disregard
of Plaintiff's rights, deprived Plaintiff Dry of his right to
Freedom of Speech, Freedom of Assembly, due process, equal protection
of the laws and impeded the due course of justice, in violation
of the 1st, and 5th Amendments of the Constitution of the United
States.
Wherefore, Plaintiff, Douglas G. Dry, demands judgment
against Defendants Hoppy Denison, Mike Russell, Steven Flowers,
Kenneth Johnson, Blake Johnico, Bob Rabon, and Robert L. Rabon,
jointly and severally, for compensatory damages in an amount of
in excess of $50,000.00 and further demands judgment against each
of the said Defendants jointly and severally, for punitive damages
in an amount of in excess of $50,000.00 plus costs of this action
and such other relief that the Court deems just and equitable.
58. Plaintiff Dry reallege and incorporate paragraphs 45 through
57 of Count I above, as if fully set forth herein as Count II.
59. There was no warrant for the arrest of Plaintiff, Douglas
G. Dry, September 4, 1995.
60. The arrest of the Plaintiff, Douglas G. Dry, by Defendants
Hoppy Denison, Mike Russell, Steven Flowers, Kenneth Johnson,
and Defendant Blake Johnico, as stated in paragraph 47 above was
without reasonable grounds for said Defendants to believe Plaintiff
Dry had committed an offense and the Defendants knew they were
without probable cause to arrest the Plaintiff, Douglas G. Dry.
61. Neither at the time of arrest, as stated above, nor at any
other time was Plaintiff Dry informed of the grounds for said
arrest. No complaint, information or indictment was ever sworn
against Plaintiff Dry alleging offenses occurring prior to the
moment Defendants Hoppy Denison, Mike Russell, Steven Flowers,
Kenneth Johnson, and Blake Johnico, announced to Plaintiff Dry
that he was under arrest.
62. The Plaintiff, Douglas G. Dry, was transported to the Talihina
Police Station, as stated above, where he was incarcerated for
over 2 hours and was not released for approximately 3-1/2 hours.
63. As a result of their concerted unlawful and malicious arrest
of Plaintiff Dry, the Defendants Hoppy Denison, Mike Russell,
Steven Flowers, Kenneth Johnson, and Blake Johnico, deprived Plaintiff
Dry of his liberty without due process of law and deprived him
of equal protection of the laws, in violation of the 4th and 5th
Amendments of the Constitution of the United States.
64. As a result of their concerted unlawful and malicious detention,
and confinement of Plaintiff Dry, Defendants Hoppy Denison, Mike
Russell, Steven Flowers, Kenneth Johnson, and Blake Johnico, intentionally,
or with deliberate indifference and callous disregard of Plaintiff's
rights, deprived Plaintiff Dry of his liberty without due process
of law and deprived him of equal protection of law in violation
of the 4th and 5th Amendments of the Constitution of the United
States.
Wherefore, Plaintiff, Douglas G. Dry, demands judgment
against the Defendants Hoppy Denison, Mike Russell, Steven Flowers,
Kenneth Johnson, and Defendant Blake Johnico, jointly and severally,
for compensatory damages in an amount in excess of $50,000.00
and further demands judgment against each of the Defendant's jointly
and severally, for punitive damage in an amount of in excess of
$50,000.00 plus the cost of this action and such other relief
as the Court deems just and equitable.
65. Plaintiff Dry reallege and incorporate paragraphs 45 through
57 of Count I above, and paragraphs 58 through 64 of Count II,
above as if fully set forth herein as Count III.
66. At all times relevant to this complaint, Defendants Kim Reed
as Director of Law Enforcement Operations for the Choctaw Nation,
Hoppy Denison, Mike Russell, Steven Flowers, Kenneth Johnson and
Blake Johnico, as police officers of the Choctaw Nation Tribal
Police Department, were acting as federal law enforcement officers
pursuant to the authority granted them by the Bureau of Indian
Affairs, under the Indian Law Enforcement Act, 25 U.S.C.A. 2801,
et seq., under the direction and control of Defendants United
States of America, Bruce Babbitt, Ada E. Deere, Jim Fields, Perry
Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson, and
Larry Mings.
67. Acting under color of law and pursuant to official policy
or custom, Defendants United States of America, Bruce Babbitt,
Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, knowingly, recklessly
or with deliberate indifference and callous disregard of Plaintiff
Dry's rights, failed to instruct, supervise, control and discipline
on a continuing basis Defendant tribal police officers in their
duties to refrain from: 1) unlawfully and maliciously harassing
Plaintiff Douglas G. Dry who was acting in accordance with his
constitutional and statutory rights, privileges, and immunities;
2) unlawfully and maliciously arresting, imprisoning, and prosecuting
a citizen who is in accordance with constitutional abd statutory
rights, privileges and immunities; 3) unlawfully and maliciously
beating a citizen or otherwise using unreasonable and excessive
force before, during or after the making of an arrest, whether
the arrest was lawful or unlawful; 4) conspiring to violate the
rights, privileges and immunites guaranteed to Plaintiff Dry by
the Constitution and laws of the United States; 5) otherwise depriving
Plaintiff Dry of his constitutional and statutory rights, privileges
and immunities.
68. Defendants United States of America, Bruce Babbitt, Ada E.
Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher,
Curtis Wilson, and Larry Mings, had knowledge or, had negligently
exercised their duties to instruct, supervise, control, and discipline
on a continuing basis, should have knowledge that the wrongs conspired
to be done, as heretofore alleged, were about to be committed.
Defendants United States of America, Bruce Babbitt, Ada E. Deere,
Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher,
Curtis Wilson, and Larry Mings, had power to prevent or aid in
preventing the comission of said wrong, could have done so by
reasonable diligence, and knowingly, recklessly or with deliberate
indifference and callous disregard of the Plaintiff Dry's rights
failed or refused to do so.
69. Defendants United States of America, Bruce Babbitt, Ada E.
Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher,
Curtis Wilson, and Larry Mings, directly or indirectly, under
color of law, approved or ratified the unlawful, deliberate, malicious,
reckless, wanton conduct of Defendant police officers heretofore
described.
70. As a direct approximate cause of the acts of the Defendants
United States of America, Bruce Babbitt, Ada E. Deere, Jim Fields,
Perry Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson,
and Larry Mings, as set forth in paragraphs 66 through 69 above,
Plaintiff, Douglas G. Dry, suffered physical injury, loss of money,
medical expenses, loss of temporary and permanent enjoyment of
property, severe mental anquish, damage to reputation and community
standing, in connection with deprivation of Plaintiff Dry's constitutional
and statutory rights guaranteed by the 1st, 4th, and 5th Amendments
of the Constitution of the United States and protected by 42 U.S.C.A.
1983.
Wherefore, Plaintiff, Douglas G. Dry, demands judgment
against the Defendants United States of America, Bruce Babbitt,
Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, jointly and severally,
for compensatory damages in an amount in excess of $50,000.00
and further demands judgment against each of the said Defendants,
jointly and severally, for punitive damages for punitive damages
in an amount in excess of $50,000.00, plus costs of this action
and such other relief that the Court deems just and equitable.
71. Plaintiff reallege and incorporate paragraphs 45 through
57 of Count I above, paragraphs 58 through 64 of Count II above,
and paragraphs 65 through 70 of Count III above, as if fully set
forth herein as Count IV.
72. This claim is brought pursuant to 28 U.S.C.A. Section 2410
et seq., the Federal Tort Claims Act.
73. Timely proceedings have been commenced, as the date of occurrence
of the alleged wrongful acts occurred September 4, 1995. The United
States Department of Interior, Office of the Solicitor, denied
this tort claim of Plaintiff, Douglas G. Dry, by letter dated
December 30, 1996.
74. The Defendants Hoppy Denison, Mike Russell, Steven Flowers,
Kenneth Johnson, and Blake Johnico, deliberately, intentionally
and maliciously, committed against the Plaintiff, Douglas G. Dry,
an assault and battery, unlawful detention, false imprisonment,
and wrongful arrest.
75. The Defendant Robert L. Rabon, deliberately and intentionally
committed and continues to commit malicious prosecution and abuse
of process against the Plaintiff, Douglas G. Dry, through the
continued wrongful and false criminal prosecution in the Court
of Indian Offenses of the Choctaw Nation.
Wherefore, Plaintif, Douglas G. Dry, demands judgment against
Defendants Hoppy Denison, Mike Russell, Steven Flowers, Kenneth
Johnson, Blake Johnico, and Robert L. Rabon, jointly and severally,
for compensatory damages in an amount of in excess of $50,000.00,
plus costs of this action and such other relief as the Court deems
just and equitable.
76. Plaintiff reallege and incorporate paragraphs 45 through
57 of Count I above, paragraphs 58 through 64 of Count II above,
and paragraphs 65 through 70 of Count III above, paragraphs 71
through 75 of Count IV above, as if fully set forth herein as
Count V.
77. On the morning of September 4, 1995 at approximately 9:30
a.m. Plaintiff Dry was unlawfully arrested and taken to the Talihina
City Jail located in Talihina, Oklahoma for the purpose of incarcerating
the Plaintiff, Douglas G. Dry.
78. Defendant Jack England agreed to take custody of Plaintiff
Dry from the Choctaw Nation Tribal Police.
79. Defendant Jack England took custody of Plaintiff Dry without
first establishing that the Plaintiff had been arrested for any
valid criminal violation.
80. The Defendant Jack England called, by telephone, the Choctaw
Tribal police repeatedly in an effort to determine the criminal
violations for which Plaintiff Douglas G. Dry had been arrested
and incarcerated. The Defendant Jack England never obtained any
statement, nor any formal or informal assertion by the police
of the Choctaw Nation as to why the Plaintiff, Douglas G. Dry,
had been arrested and therefore, without such probable cause for
Plaintiff Dry's detention, the Defendant Jack England continued
to keep the Plaintiff in his jail for over 2 hours with no basis
for the detention.
81. After over 2 hours of detention in the Talihina City Jail
by the Defendant Jack England, Plaintiff Dry's custody was transferred
to the Choctaw Nation Tribal authorities and taken to the Court
of Indian Offenses for the Choctaw Nation [a/k/a Choctaw Tribal
Courthouse] at Tuskahoma, Oklahoma for a court appearance on charges
that were never communicated to the Talihina police to establish
a lawful basis for detention of Plaintiff Dry.
82. The Defendant Jack England worked under the direct supervision
and control at all times relevant to this complaint of Defendants
Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels.
83. Acting under color of law and pursuant to official policy
or customs Defendants Malcomb Wade, Niky Hibdon, Lloyd James,
John Wheat and Naomi O'Daniels, and City of Talihina, knowingly,
recklessly, or with deliberate indifference and callous disregard
of Plaintiff Dry's rights, failed to instruct, supervise, control
and discipline on a continuing basis, Defendant Jack England on
his duties to refrain from: 1) unlawfully imprisoning a citizen
who was acting according to his constitutional and statutory rights,
privileges, and immunities; 2) unlawfully detaining a citizen
without any basis for the continued detention of a citizen who
was acting in accordance with his constitutional and statutory
rights, privileges, and immunities; and 3) otherwise depriving
Plaintiff Dry of his constitutional and statutory rights, privileges,
and immunities of the United States.
84. Defendants Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat
and Naomi O'Daniels, and City of Talihina, Oklahoma had knowlege,
or, had negligently exercised their duties to instruct, supervise,
control, and discipline on a continuing basis, and should of had
knowledge that the wrongs done, as heretofore alleged, were about
to be committed.
85. Defendants Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat
and Naomi O'Daniels, and City of Talihina, Oklahoma had power
to prevent and aid in the prevention in the commission of said
wrongs, could have so by a reasonable diligence, and knowingly,
recklessly, or with deliberate indifference and callous disregard
of Plaintiff Dry's rights failed or refuse to do so.
86. Defendants Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat
and Naomi O'Daniels, and City of Talihina, Oklahoma directly or
indirectly, under color of law, approved or ratified the unlawful,
deliberate, reckless, and wanton contact of Defendant Jack England
heretofore described.
87. Direct and proximate cause of the acts and/or omissions of
the Defendants Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat
and Naomi O'Daniels, and City of Talihina, Oklahoma as set forth
in paragraphs 77 through 86 above, Plaintiff Dry suffered severe
mental anquish, loss of liberty, in connection with deprivation
of his constitutional and statutory rights guaranteed by the 5th
and 14th Amendments of the Constitution of the United States and
protected by 42 U.S.C. Section 1983.
Wherefore, Plaintiff, Douglas G. Dry, demands judgment
against the Defendants Jack England, Malcomb Wade, Niky Hibdon,
Lloyd James, John Wheat and Naomi O'Daniels, and City of Talihina,
Oklahoma, jointly and severely, for compensatory damages in an
amount in excess of $50,000.00, and further demands judgment against
of said Defendants (except the City of Talihina), jointly and
severely, for punitive damages in an amount of in excess of $50,000.00,
plus the cost of this action and such other relief as the Court
deems just and equitable.
88. Plaintiff Dry reallege and incorporate paragraphs 45 through
57 of Count I above, paragraphs 58 through 64 of Count II above,
paragraphs 65 through 70 of Count III above, paragraphs 71 to
75 of Count IV above, and paragraphs 76 through 87 of Count V
above, as if fully set forth herein as Count VI.
89. This claim is brought pursuant to 51 O.S. Section 151, et
seq., the Governmental Tort Claims Act of the State of Oklahoma.
90. Timely proceedings have been commenced, as the date of the
occurrence of the alleged wrongful acts which occurred September
4, 1995. The Clerk of the City of Talihina, State of Oklahoma,
was sent notification of said claim. Further, said claim was deemed
denied in that the City of Talihina failed to give the notice
required by statute within the 90 day period to the Plaintiff
Dry. Further this action is commenced within 180 days from said
90 day period.
91. Acting under color of law and pursuant to official policy
or customs Defendants Malcomb Wade, Niky Hibdon, Lloyd James,
John Wheat and Naomi O'Daniels, and City of Talihina, Oklahoma,
knowingly, recklessly, or with deliberate indifference and callous
disregard of Plaintiff Dry's rights failed to instruct, supervise,
control and discipline on a continuing basis, Defendant Jack England
on his duties to refrain from: 1) false imprisonment of a citizen;
2) unlawfully detaining a citizen without any basis for the continued
detention of a citizen.
92. Direct and proximate cause of the acts of the Defendants Malcomb
Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels,
and City of Talihina, Oklahoma as set forth in paragraphs 88 through
91 above, Plaintiff Dry suffered severe mental anquish, loss of
liberty, in connection with his false imprisonment and unlawful
detention.
Wherefore, Plaintiff, Douglas G. Dry, demands judgment
against the Defendants Jack England, Malcomb Wade, Niky Hibdon,
Lloyd James, John Wheat, and Naomi O'Daniels, and City of Talihina,
Oklahoma, jointly and severely, for compensatory damages in the
amount $100,000.00, plus the cost of this action and such other
relief as the Court deems just and equitable.
93. On or about the 4th day of September, 1995, in the
morning hours, Plaintiff, Juanita McConnell, was attending the
Labor Day festivities at Tuskahoma, Oklahoma.
94. Plaintiff, Juanita McConnell, had on her possession items
of literature which expressed opinions concerning matters of public
concern.
95. Defendants Bill Barrow and Chris Welch, approached the Plaintiff,
Juanita McConnell, forceably restrained the Plaintiff, and placed
Plaintiff under arrest, for being in possession of the literature
and seized the literature she was carrying.
96. Defendants Kim Reed, Bill Barrow, Chris Welch, and Blake Johnico,
assaulted and bodily removed Plaintiff McConnell from this location
near Tuskahoma, Oklahoma, without provocation, need, or explanation,
and transported Plaintiff to the Clayton Police Department located
in the City of Clayton, Oklahoma, arriving there in the morning
hours of September 4, 1995.
97. While at the Tuskahoma grounds, Defendants Bill Barrow, Chris
Welch, and Blake Johnico assaulted and brutally battered Plaintiff
Juanita McConnell, while placing handcuffs on her person under
the direct supervision Defendant Kim Reed.
98. As a result of the unlawful arrest and assault by the Defendants
Bill Barrow, Chris Welch and Blake Johnico, the Plaintiff, Juanita
McConnell, suffered injuries to her right wrist and bruises on
upper thighs and upper arms. 99. The Plaintiff, Juanita McConnell,
was wrongfully incarcerated in the Clayton City Jail, September
4, 1995 for over two hours while Defendant Hoppy Denison conspired
with tribal attorney, Defendant Bob Rabon, as to what criminal
charges could justify the illegal acts of the Defendant police
officers.
100. The Defendants, Bob Rabon and Robert L. Rabon, made statements
in their capacity as tribal officials that Plaintiff McConnell
had been arrested for passing out the literature described above.
Additionally, the Defendant, Robert L. Rabon, made statements
in his capacity as the federal Bureau of Indian Affairs prosecutor
that Plaintiff McConnell had been arrested for passing out the
literature.
101. Later on or about September 14, 1995 the Plaintiff, Juanita
McConnell, was wrongfully and maliciously charged in the Court
of Indian Offenses of the Choctaw Nation of Oklahoma by Defendant
Robert L. Rabon, with five offenses in CR-95-03, Resisting Arrest;
CR-95-05, Count I: Public Disturbance; Count II: Disturbance of
a Parade; Count III: Disturbance of the Peace; Count IV: Use of
Language Calculated to Arose Anger [Breach of Peace].
102. The criminal charges described in paragraph 101 above have
yet to be resolved.
103. The Choctaw Nation, did not have the authority or the jurisdiction
to prescribe the conduct for which the Plaintiff, Juanita McConnell,
was arrested, and therefore the actions of the Defendants Kim
Reed, Bill Barrow, Chris Welch, and Blake Johnico were pursuant
to the authority of the Bureau of Indian Affairs which places
this conduct directly under the Constitution of the United States.
104. As a result of their concerted unlawful and malicious arrest
of the Plaintiff, Juanita McConnell, for exercising her rights
under the First Amendment of the United States Constitution, the
Defendants Kim Reed, Bill Barrow, Chris Welch, and Blake Johnico
intentionally, or with deliberate indifference and callous disregard
of Plaintiff's rights, deprived Plaintiff McConnell of her right
to Freedom of Speech, Freedom of Assembly, due process, equal
protection of the laws and impeded the due course of justice,
in violation of the 1st and 5th Amendments of the Constitution
of the United States.
Wherefore, Plaintiff, Juanita McConnell, demands judgment
against Defendants Kim Reed, Bill Barrow, Chris Welch, Blake Johnico,
Bob Rabon and Robert L. Rabon, jointly and severally, for compensatory
damages in an amount of in excess of $50,000.00 and further demands
judgment against each of the said Defendant's jointly and severally,
for punitive damages in an amount in excess of $50,000.00 plus
costs of this action and such other relief that the Court deems
just and equitable.
105. Plaintiff reallege and incorporate paragraphs 93 through
104 of Count VII above, as if fully set forth herein as Count
VIII.
106. There was no warrant for the arrest of Plaintiff, Juanita
McConnell, September 4, 1995.
107. The arrest of the Plaintiff Juanita McConnell by Defendants
Kim Reed, Bill Barrow, Chris Welch, and Blake Johnico as stated
in paragraph 95 above was without reasonable grounds for said
Defendants to believe Plaintiff Juanita McConnell had committed
an offense and the Defendants knew they were without probable
cause to arrest the Plaintiff Juanita McConnell.
108. Neither at the time of arrest, as stated above, nor at any
other time was Plaintiff Juanita McConnell informed of the grounds
for said arrest other than for possessing and passing out literature.
No complaint, information or indictment was ever sworn against
Plaintiff Juanita McConnell alleging offenses occurring prior
to the moment Defendants Kim Reed, Bill Barrow, Chris Welch, and
Blake Johnico announced to Plaintiff that she was under arrest.
109. The Plaintiff Juanita McConnell was transported to the Clayton
Police Station, as stated above, where she was incarcerated for
over 2 hours and was not released for approximately 3-1/2 hours.
110. As a result of their concerted unlawful and malicious arrest
of Plaintiff Juanita McConnell, the Defendants Kim Reed, Bill
Barrow, Chris Welch and Blake Johnico, deprived Plaintiff of her
liberty without due process of law and deprived her of equal protection
of the laws, in violation of the 4th, 5th and 14th Amendments
of the Constitution of the United States.
111. As a result of their concerted unlawful and malicious detention,
and confinement of Plaintiff Juanita McConnell, Defendants Kim
Reed, Bill Barrow, Chris Welch and Blake Johnico, intentionally,
or with deliberate indifference and callous disregard of Plaintiff's
rights, deprived Plaintiff of her liberty without due process
of law and deprived her of equal protection of law in violation
of the 4th and 5th Amendments of the Constitution of the United
States.
Wherefore, Plaintiff, Juanita McConnell, demands judgment
against the Defendants Kim Reed, Bill Barrow, Chris Welch, and
Blake Johnico, jointly and severally, for compensatory damages
in an amount in excess of $50,000.00 and further demands judgment
against each of the Defendants jointly and severally, for punitive
damage in an amount in excess of $50,000.00 plus the cost of this
action and such other relief as the Court deems just and equitable.
112. Plaintiff reallege and incorporates paragraphs 93 through
104 of Count VII above, and paragraphs 105 through 111 of Count
VIII above, as if fully set forth herein as Count IX.
113. At all times relevant to this complaint, Defendants Kim Reed,
as Director of Law Enforcement Operations for the Choctaw Nation,
Bill Barrow, Chris Welch and Blake Johnico, as police officers
of the Choctaw Nation Tribal Police Department, were acting as
federal law enforcement officers pursuant to the authority granted
them by the Bureau of Indian Affairs, under the Indian Law Enforcement
Act, 25 U.S.C.A. 2801, et seq., under the direction and control
of Defendants United States of America, Bruce Babbitt, Ada E.
Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher,
Curtis Wilson, and Larry Mings.
114. Acting under color of law and pursuant to official policy
or custom, Defendants United States of America, Bruce Babbitt,
Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, knowingly, recklessly
or with deliberate indifference and callous disregard of Plaintiff
McConnell's rights, failed to instruct, supervise, control and
discipline on a continuing basis Defendant tribal police officers
in their duties to refrain from: 1) unlawfully and maliciously
harassing Plaintiff Juanita McConnell who was acting in accordance
with her constitutional and statutory rights, privileges, and
immunities; 2) unlawfully and maliciously arresting, imprisoning,
and prosecuting a citizen in accordance with constitutional and
statutory rights, privileges and immunities; 3) unlawfully and
maliciously beating a citizen or otherwise using unreasonable
and excessive force before, during or after the making of an arrest,
whether the arrest was lawful or unlawful; 4) conspiring to violate
the rights, privileges and immunites guaranteed to Plaintiff Juanita
McConnell by the Constitutional laws of the United States; 5)
otherwise depriving Plaintiff Juanita McConnell of her constitutional
and statutory rights, privileges and immunities.
115. Defendants United States of America, Bruce Babbitt, Ada E.
Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher,
Curtis Wilson, and Larry Mings, had knowledge or, had negligently
exercised their duties to instruct, supervise, control, and discipline
on a continuing basis, and should have knowledge that the wrongs
conspired to be done, as heretofore alleged, were about to be
committed. Defendants United States of America, Bruce Babbitt,
Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, had power to prevent
or aid in preventing the comission of said wrong, could have done
so by reasonable diligence, and knowingly, recklessly or with
deliberate indifference and callous disregard of the Plaintiff
McConnell's rights failed or refused to do so.
116. Defendants United States of America, Bruce Babbitt, Ada E.
Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher,
Curtis Wilson, and Larry Mings, directly or indirectly, under
color of law, approved or ratified the unlawful, deliberate, malicious,
reckless, wanton conduct of Defendant police officers heretofore
described.
117. As a direct approximate cause of the acts and/or omissions
of the Defendants United States of America, Bruce Babbitt, Ada
E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, as set forth in paragraphs
115 through 118 above, Plaintiff, Juanita McConnell, suffered
physical injury, loss of money, medical expenses, loss of temporary
and permanent enjoyment of property, severe mental anquish, damage
to reputation and community standing, in connection with deprivation
of Plaintiff McConnell's constitutional and statutory rights guaranteed
by the 1st, 4th, 5th and 14th Amendments of the Constitution of
the United States and protected by 42 U.S.C.A. 1983.
Wherefore, Plaintiff, Juanita McConnell, demands judgment
against the Defendants United States of America, Bruce Babbitt,
Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, jointly and severally,
for compensatory damages in an amount in excess of $50,000.00
and further demands judgment against each of the said Defendants,
jointly and severally, for punitive damages for punitive damages
in an amount in excess of $50,000.00, plus costs of this action
and such other relief that the Court deems just and equitable.
118. Plaintiff McConnell reallege and incorporate paragraphs
93 through 104 of Count VII above, paragraphs 105 through 111
of Count VIII above, and paragraphs 112 through 117 of Count IX
above, as if fully set forth herein as Count X.
119. This claim is brought pursuant to 28 U.S.C.A. Section 2410
et seq., the Federal Tort Claims Act.
120. Timely proceedings have been commenced, as the date of occurrence
of the alleged wrongful acts occurred September 4, 1995. The United
States Department of Interior, Office of the Solicitor, denied
this tort claim of Plaintiff, Juanita McConnell, by letter dated
December 30, 1996.
121. The Defendants Kim Reed, Bill Barrow, Chris Welch and Blake
Johnico, deliberately, intentionally and maliciously, committed
against the Plaintiff, Juanita McConnell, an assault and battery,
unlawful detention, false imprisonment, and wrongful arrest.
122. The Defendant Robert L. Rabon, deliberately and intentionally
committed and continues to commit malicious prosecution and abuse
of process against the Plaintiff, Juanita McConnell, through the
continued wrongful and false criminal prosecution in the Court
of Indian Offenses of the Choctaw Nation.
Wherefore, Plaintiff, Juanita McConnell, demands judgment
against Defendants Kim Reed, Bill Barrow, Chris Welch and Blake
Johnico, and Robert L. Rabon, jointly and severally, for compensatory
damages in an amount of in excess of $50,000.00, plus costs of
this action and such other relief as the Court deems just and
equitable.
123. On or about the 4th day of September, 1995, in the morning
hours, Plaintiff, Rosie Burlison, was attending the Labor Day
festivities at Tuskahoma, Oklahoma.
124. Plaintiff, Rosie Burlison, had on her possession items of
literature which expressed opinions concerning matters of public
concern.
125. Defendants Kim Reed and Bill Barrow, approached the Plaintiff,
Rosie Burlison, assaulted her, seized her video camera, forceably
restrained her, placed Plaintiff Rosie Burlison under arrest,
refused to tell Plaintiff Rosie Burlison why she was under arrest
and seized the literature she was carrying.
126. Defendants Kim Reed and Bill Barrow, assaulted, handcuffed
and bodily removed Plaintiff Rosie Burlison from this location
near Tuskahoma, Oklahoma, without provocation, need, or explanation,
and transported Plaintiff Rosie Burlison to the Clayton Police
Department located in the City of Clayton, Oklahoma arriving there
in the morning hours of September 4, 1995.
127. As a result of the unlawful arrest and assault by the Defendants
Kim Reed and Bill Barrow, the Plaintiff Rosie Burlison suffered
bruises and swelling about her wrist and injuries to her body.
128. The Plaintiff, Rosie Burlison, was incarcerated in the Clayton
City Jail, September 4, 1995 for over two hours while Defendant
Hoppy Denison conpsired with tribal attorney, Defendant Bob Rabon,
as to what criminal charges could justify the illegal acts of
the Defendant police officers.
129. The Plaintiff, Rosie Burlison, never received any information
as to why she was arrested other than for resisting arrest, until
after being transported from the Clayton City Jail back to Tuskahoma
Tribal Grounds for a Court of Indian Offenses court appearance.
130. The Defendants, Bob Rabon, and Robert L. Rabon, made statements
in his capacity as tribal officials that Plaintiff Rosie Burlison
had been arrested for passing out the literature described above.
Additionally, the Defendant, Robert Rabon, Jr., made statements
in his capacity as the federal Bureau of Indian prosecutor that
Plaintiff Rosie Burlison had been arrested for passing out the
literature.
131. Later on or about September 14, 1995 the Plaintiff, Rosie
Burlison, was wrongfully and maliciously charged in the Court
of Indian Offenses of the Choctaw Nation of Oklahoma by Defendant
Robert L. Rabon, with five offenses in CR-95-04, Interferring
with Police Officer from Official Duties; CR-95-05, Count I: Public
Disturbance; Count II: Disturbed of a Parade; Count III: Disburbed
the Peace; Count IV: Use of Language Calculated to Arouse Anger
[Breach of the Peace].
132. The criminal charges described in paragraph 133 above have
yet to be resolved.
133. The Choctaw Nation, did not have the authority or the jurisdiction
to prescribe the conduct for which the Plaintiff, Rosie Burlison,
was arrested, and therefore the actions of the Defendants Kim
Reed and Bill Barrow, were pursuant to the authority of the Bureau
of Indian Affairs which places this conduct directly under the
Constitution of the United States.
134. As a result of their concerted unlawful and malicious arrest
of the Plaintiff, Rosie Burlison, for exercising her rights under
the First Amendment of the United States Constitution, the Defendants
Kim Reed and Bill Barrow, intentionally, or with deliberate indifference
and callous disregard of Plaintiff's rights, deprived Plaintiff,
Rosie Burlison, of her right to Freedom of Speech, Freedom of
Assembly, due process, equal protection of the laws and impeded
the due course of justice, in violation of the 1st and 5th Amendments
of the Constitution of the United States.
Wherefore, Plaintiff, Rosie Burlison, demands judgment
against Defendants Kim Reed, Bill Barrow, Bob Rabon, and Robert
L. Rabon, jointly and severally, for compensatory damages in an
amount of in excess of $50,000.00 and further demands judgment
against each of the said Defendants jointly and severally, for
punitive damages in an amount in excess of $50,000.00 plus costs
of this action and such other relief that the Court deems just
and equitable.
135. Plaintiff Rosie Burlison realleges and incorporates paragraphs
123 through 134 of Count XI above as if fully set forth herein
as Count XII.
136. There was no warrant for the arrest of Plaintiff, Rosie Burlison,
September 4, 1995.
137. The arrest of the Plaintiff, Rosie Burlison, by Defendants'
Kim Reed and Bill Barrow, as stated in paragraph 127 above was
without reasonable grounds for said Defendants to believe Plaintiff
Rosie Burlison had committed an offense and the Defendants' Kim
Reed and Bill Barrow, knew they were without probable cause to
arrest the Plaintiff, Rosie Burlison.
138. Neither at the time of arrest, as stated above, nor at any
other time was Plaintiff Rosie Burlison informed of the grounds
for said arrest other than resisting arrest. No complaint, information
or indictment was ever sworn against Plaintiff Rosie Burlison
alleging offenses occurring prior to the moment Defendants Kim
Reed and Bill Barrow, announced to Plaintiff Rosie Burlison that
she was under arrest.
139. The Plaintiff, Rosie Burlison, was transported to the Clayton
Police Station, as stated above, where she was incarcerated for
over 2 hours and was not released for approximately 3-1/2 hours.
140. As a result of their concerted unlawful and malicious arrest
of Plaintiff Rosie Burlison, the Defendants Kim Reed and Bill
Barrow, deprived Plaintiff Rosie Burlison of her liberty without
due process of law and deprived her of equal protection of the
laws, in violation of the 4th, 5th and 14th Amendments of the
Constitution of the United States.
141. As a result of their concerted unlawful and malicious detention,
and confinement of Plaintiff Rosie Burlison, Defendants Kim Reed
and Bill Barrow, intentionally, or with deliberate indifference
and callous disregard of Plaintiff's rights, deprived Plaintiff
Rosie Burlison of her liberty without due process of law and deprived
her of equal protection of law in violation of the 4th and 5th
Amendments of the Constitution of the United States.
Wherefore, Plaintiff, Rosie Burlison, demands judgment
against the Defendants Kim Reed and Bill Barrow, jointly and severally,
for compensatory damages in an amount in excess of $50,000.00
and further demands judgment against each of the Defendant's jointly
and severally, for punitive damage in an amount in excess of $50,000.00
plus the cost of this action and such other relief as the Court
deems just and equitable.
142. Plaintiff Rosie Burlison realleges and incorporates paragraphs
123 through 134 of Count XI above, and paragraphs 135 through
141 of Count XII above, as if fully set forth herein as Count
XIII.
143. At all times relevant to this complaint, Defendants Kim Reed,
as Director of Law Enforcement for the Choctaw Nation and Bill
Barrow, as police officer of the Choctaw Nation Tribal Police
Department, were acting as federal law enforcement officers pursuant
to the authority granted them by the Bureau of Indian Affairs,
under the Indian Law Enforcement Act, 25 U.S.C.A. 2801, et seq.,
under the direction and control of Defendants United States of
America, Bruce Babbitt, Ada E. Deere, Jim Fields, Perry Proctor,
Dennis Springwater, Karen Ketcher, Curtis Wilson, and Larry Mings.
144. Acting under color of law and pursuant to official policy
or custom, Defendants United States of America, Bruce Babbitt,
Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, knowingly, recklessly
or with deliberate indifference and callous disregard of Plaintiff
Rosie Burlison's rights, failed to instruct, supervise, control
and discipline on a continuing basis Defendant tribal police officers
in their duties to refrain from: 1) unlawfully and maliciously
harassing Plaintiff Rosie Burlison who was acting in accordance
with her constitutional and statutory rights, privileges, and
immunities; 2) unlawfully and maliciously arresting, imprisoning,
and prosecuting a citizen who is in accordance with constitutional
and statutory rights, privileges and immunities; 3) unlawfully
and maliciously beating a citizen or otherwise using unreasonable
and excessive force before, during or after the making of an arrest,
whether the arrest was lawful or unlawful; 4) conspiring to violate
the rights, privileges and immunites guaranteed to Plaintiff Rosie
Burlison by the Constitution and laws of the United States; 5)
otherwise depriving Plaintiff Rosie Burlison of her constitutional
and statutory rights, privileges and immunities.
145. Defendants' United States of America, Bruce Babbitt, AdaE.
Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher,
Curtis Wilson, and Larry Mings, had knowledge or, had negligently
exercised their duties to instruct, supervise, control, and discipline
on a continuing basis, and should have knowledge that the wrongs
conspired to be done, as heretofore alleged, were about to be
committed. Defendants United States of America, Bruce Babbitt,
Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, had power to prevent
or aid in preventing the comission of said wrong, could have done
so by reasonable diligence, and knowingly, recklessly or with
deliberate indifference and callous disregard of the Plaintiff
Rosie Burlison's rights failed or refused to do so.
146. Defendants' United States of America, Bruce Babbitt, Ada
E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, directly or indirectly,
under color of law, approved or ratified the unlawful, deliberate,
malicious, reckless, wanton conduct of Defendant police officers
heretofore described. 147. As a direct approximate cause of the
acts and/or omissions of the Defendants United States of America,
Bruce Babbitt, Ada E. Deere, Jim Fields, Perry Proctor, Dennis
Springwater, Karen Ketcher, Curtis Wilson, and Larry Mings, as
set forth in paragraphs 143 through 146 above, Plaintiff, Rosie
Burlison, suffered physical injury, loss of money, medical expenses,
loss of temporary and permanent enjoyment of property, severe
mental anquish, damage to reputation and community standing, in
connection with deprivation of Plaintiff Rosie Burlison's constitutional
and statutory rights guaranteed by the 1st, 4th, and 5th Amendments
of the Constitution of the United States and protected by 42 U.S.C.A.
1983.
Wherefore, Plaintiff, Rosie Burlison, demands judgment
against the Defendants United States of America, Bruce Babbitt,
Ada E. Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen
Ketcher, Curtis Wilson, and Larry Mings, jointly and severally,
for compensatory damages in the amount in excess of $50,000.00
and further demands judgment against each of the said Defendants,
jointly and severally, for punitive damages for punitive damages
in the amount in excess of $50,000.00, plus costs of this action
and such other relief that the Court deems just and equitable.
148. Plaintiff Rosie Burlison realleges and incorporates paragraphs
123 through 134 of Count XI above, paragraphs 135 through 141
of Count XII above, and paragraphs 142 through 147 of Count XIII
above, as if fully set forth herein as Count XIV.
149. This claim is brought pursuant to 28 U.S.C.A. Section 2410
et seq., the Federal Tort Claims Act.
150. Timely proceedings have been commenced, as the date of occurrence
of the alleged wrongful acts occurred September 4, 1995. The United
States Department of Interior, Office of the Solicitor, denied
this tort claim of Plaintiff, Rosie Burlison, by letter dated
December 30, 1996.
151. The Defendants Kim Reed and Bill Barrow, deliberately, intentionally
and maliciously, committed against the Plaintiff, Rosie Burlison,
an assault and battery, unlawful denention, false imprisonment,
and wrongful arrest.
152. The Defendant Robert L. Rabon, deliberately and intentionally
committed and continues to commit malicious prosecution and abuse
of process against the Plaintiff, Rosie Burlison, through the
continued wrongful and false criminal prosecution in the Court
of Indian Offenses of the Choctaw Nation.
Wherefore, Plaintif, Rosie Burlison, demands judgment against
Defendants' Kim Reed and Bill Barrow, and Robert L. Rabon, jointly
and severally, for compensatory damages in the amount of in excess
of $50,000.00, plus costs of this action and such other relief
as the Court deems just and equitable.
153. Plaintiff Juanita McConnell realleges and incorporates
paragraphs 93 through 104 of Count VII above, paragraphs 105 through
111 of Count VIII above, paragraphs 112 through 117 of Count IX
above, and paragraphs 118 through 122 of Count X, as if fully
set forth herein as Count XV.
154. Plaintiff Rosie Burlison realleges and incorporates paragraphs
123 through 134 of Count XI above, paragraphs 135 through 141
of Count XII above, paragraphs 142 through 147 of Count XIII above,
and paragraphs 148 through 152 of Count XIV above, as if fully
set forth herein as Count XV.
155. On the morning of September 4, 1995 at approximately 9:30
a.m. Plaintiffs Juanita McConnell and Rosie Burlison were unlawfully
arrested and taken to the Clayton City Jail located in Clayton,
Oklahoma for the purpose of incarcerating the Plaintiffs, Juanita
McConnell and Rosie Burlison.
156. Defendant Terry Bell agreed to take custody of the Plaintiffs
Juanita McConnell and Rosie Burlison, from the Choctaw Nation
Tribal Police.
157. Defendant Terry Bell took custody of the Plaintiffs Juanita
McConnell and Rosie Burlison, without first establishing that
the Plaintiffs Juanita McConnell and Rosie Burlison, had been
arrested for any valid criminal violation.
158. After over 2 hours of detention in the Clayton City Jail
by the Defendant Bell, Plaintiffs Juanita McConnell and Rosie
Burlison's custody was transferred to the Choctaw Nation Tribal
authorities and taken to the Choctaw Tribal Courthouse at Tuskahoma,
Oklahoma for a court appearance.
159. The Defendant Terry Bell worked under the direct supervision
and control at all times relevant to this complaint of Defendants
Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and
Jimmy Long.
160. Acting under color of law and pursuant to official policy
or customs Defendants City of Clayton, Rowland Hall, Mike Van
Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long, knowingly,
recklessly, or with deliberate indifference and callous disregard
of Plaintiffs Juanita McConnell and Rosie Burlison's rights, failed
to instruct, supervise, control and discipline on a continuing
basis, Defendant Bell on his duties to refrain from: 1) unlawfully
imprisoning citizens who were acting according to their constitutional
and statutory rights, privileges, and immunities; 2) unlawfully
detaining citizens without any basis for the continued detention
of citizens who were acting in accordance with their constitutional
and statutory rights, privileges, and immunities; and 3) otherwise
depriving Plaintiffs Juanita McConnell and Rosie Burlison of their
constitutional and statutory rights, privileges, and immunities
of the United States.
161. Defendants Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca
Johnson and Jimmy Long, and City of Clayton, Oklahoma had knowlege,
or, had they diligently
exercised their duties to instruct, supervise, control, and discipline
on a continuing basis, and should of had knowledge that the wrongs
done, as heretofore alleged, were about to be committed.
162. Defendants Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca
Johnson and Jimmy Long, and City of Clayton, Oklahoma had power
to prevent and aid in the prevention in the commission of said
wrongs, could have so by a reasonable diligence, and knowingly,
recklessly, or with deliberate indifference and callous disregard
of Plaintiffs Juanita McConnell and Rosie Burlison's rights failed
or refuse to do so.
163. Defendants Rowland Hall, Mike Van Horn, Rowland Bradford,
Rebecca Johnson and Jimmy Long, and City of Clayton, Oklahoma
directly or indirectly, under color of law, approved or ratified
the unlawful, deliberate, malicious, reckless, and wanton contact
of Defendant Terry Bell heretofore described.
164. Direct and proximate cause of the acts of the Defendants
Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and
Jimmy Long, and City of Clayton, Oklahoma as set forth in paragraphs
157 through 166 above, Plaintiffs Juanita McConnell and Rosie
Burlison suffered severe mental anquish, loss of liberty, and
damage to reputation and community standing, in connection with
deprivation of their constitutional and statutory rights guaranteed
by the 5th and 14th Amendments of the Constitution of the United
States and protected by 42 U.S.C. Section 1983.
Wherefore, Plaintiffs, Juanita McConnell and Rosie Burlison,
demand judgment against the Defendants Terry Bell, Rowland Hall,
Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long,
and City of Clayton, Oklahoma, jointly and severely, for compensatory
damages in the amount in excess of $50,000.00, and further demands
judgment against of said Defendants (except the City of Clayton),
jointly and severely, for punitive damages in the amount of in
excess of $50,000.00, plus the cost of this action and such other
relief as the Court deems just and equitable.
165. Plaintiff Juanita McConnell realleges and incorporates
paragraphs 93 through 104 of Count VII above, paragraphs 105 through
111 of Count VIII above, paragraphs 112 through 117 of Count IX
above, paragraphs 118 through 122 of Count X, and paragraphs 154
through 164 above, as if fully set forth herein as Count XVI.
166. Plaintiff Rosie Burlison realleges and incorporates paragraphs
123 through 134 of Count XI above, paragraphs 135 through 141
of Count XII above, paragraphs 142 through 147 of Count XIII above,
paragraphs 148 through 152 of Count XIV above, and paragraphs
153 through 164 above, as if fully set forth herein as Count XVI.
167. This claim is brought pursuant to 51 O.S. Section 151, et
seq., the Governmental Tort Claims Act of the State of Oklahoma.
168. Timely proceedings have been commenced, as the date of the
occurrence of the alleged wrongful acts which occurred September
4, 1995. The Clerk of the City of Clayton, State of Oklahoma,
was sent notification of said claim. Further, said claim was deemed
denied in that City of Clayton failed to give the notice required
by statute within the 90 day period to the Plaintiffs McConnell
and Burlison. Further this action is commenced within 180 days
from said 90 day period.
169. Acting under color of law and pursuant to official policy
or customs Defendants Terry Bell, Rowland Hall, Mike Van Horn,
Darrel Kirkes, Rebecca Johnson and Jimmy Long, and City of Clayton,
Oklahoma, knowingly, recklessly, or with deliberate indifference
and callous disregard of Plaintiffs Juanita McConnell and Rosie
Burlison's rights, failed to instruct, supervise, control and
discipline on a continuing basis, Defendant Terry Bell on his
duties to refrain from: 1) false imprisonment of citizens; 2)
unlawfully detaining citizens without any basis for the continued
detention of citizens.
170. Direct and proximate cause of the acts of the Defendants
Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca
Johnson and Jimmy Long, and City of Clayton, Oklahoma, as set
forth in paragraphs 165 through 169 above, Plaintiffs Juanita
McConnell and Rosie Burlison suffered severe mental anquish, loss
of liberty, damage to reputation and community standing, in connection
with their false imprisonment and unlawful detention.
Wherefore, Plaintiffs, Juanita McConnell and Rosie Burlison,
demands judgment against the Defendants Terry Bell, Rowland Hall,
Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long,
and City of Clayton, Oklahoma, jointly and severely, for compensatory
damages in the amount $100,000.00, plus the cost of this action
and such other relief as the Court deems just and equitable.
171. Plaintiffs, Douglas G. Dry, Juanita McConnell and Rosie
Burlison, reallege and incorporate paragraphs 45 through 170 of
Counts I through XVI above, as if fully set forth herein as Count
XVII.
172. On September 27, 1830, the Treaty of Dancing Rabbit Creek,
7 Stat. 333, was signed between the United States and Choctaw
Nation. Under Article VII, the United States agreed, "All
acts of violence committed upon persons and property of the people
of the Choctaw Nation either by citizens of the U.S. or neighbouring
Tribes of Red People, shall be referred to some authorized Agent
by him to be referred to the President of the U.S. who shall examine
into such cases and see that every possible degree of justice
is done to said Indian party of the Choctaw Nation." Plaintiffs
Dry, Burlison and McConnell hereby make demand upon the United
States and its authorized agents for acts of violence committed
upon their persons and property.
173. On June 22, 1855, a treaty was signed between the Choctaw
Nation, Chickasaw Nation and the United States, 11 Stat. 573.
Under Article XIV, the United States agreed, "The United
States shall protect the Choctaws and Chickasaws from domestic
strife, from hostile invasion, and from aggression by other Indians
and white persons not subject to their jurisdiction and laws;
and for all injuries, resulting from such invasion or aggression,
full indemnity is hereby guaranteed to the party or parties injured,
out of the treasury of the United States, upon the same principle
and according to the same rules upon which white persons are entitled
to indemnity for injuries or aggressions upon the, committed by
Indians." Plaintiffs Dry, Burlison and McConnell hereby make
demand upon the United States and its authorized agents for injuries
they sustained during acts of agression by the Choctaw Nation
law enforcement committed upon their persons and property.
174. On July 10, 1866, a treaty was signed between the Choctaw
Nation, Chickasaw Nation and the United States. Under Article
X, the United States agreed, "The United States re-affirms
all obligations arising out of the treaty stipulations or acts
of legislation with regard to the Choctaw and Chickasaw nations,
entered into prior to the late rebellion, and in force at that
time, not inconsistent herewith;..."
Wherefore, Plaintiffs, Douglas G. Dry, Juanita McConnell
and Rosie Burlison, demand judgment against the Defendants United
States of America, Bruce Babbitt, Ada E. Deere, Jim Fields, Perry
Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson, and
Larry Mings, jointly and severally, for compensatory damages in
an amount in excess of $50,000.00 and further demands judgment
against each of the said Defendants, jointly and severally, for
punitive damages for punitive damages in an amount in excess of
$50,000.00, plus costs of this action and such other relief that
the Court deems just and equitable.
WHEREFORE, Plaintiffs, Douglas G. Dry, Juanita McConnell
and Rosie Burlison, pray that this court advance this case on
the docket, order a speedy trial at the earliest practical date,
cause this case to be expedited in every way possible and upon
such hearing to:
(1) Order Defendants listed above to pay compensatory and punitive
damages and in support states that the conduct of the Defendants
and each of them severely and acting in concert caused but not
limited to the above listed damages to include but not limited
to the following enumerated damages suffered by the Plaintiffs
for which they bring this action:
A. Physical, emotional and mental distress,
embarrassment and humiliation,
B. Costs of attorney fees of this Action,
C. Punitive damages.
D. Loss of Income.
Dated:__________________________
_____________________________
DOUGLAS G. DRY, OBA #012653
103-1/2 West Main
P.O. Box 637
Wilburton, Oklahoma 74578
(918) 465-5033
ATTORNEY FOR PLAINTIFFS
Jury Trial Demanded
Attorneys' Lien Claimed