Case No. CIV-97-113-B

DOUGLAS G. DRY,
JUANITA MCCONNELL and
ROSIE BURLISON,

Plaintiffs,

VS.

UNITED STATES OF AMERICA, et al.

Defendants.

Pursuant to Federal Rules of Civil Procedure 26 (f) and in compliance with the Court's instruction, a second meeting was held on May 8, 1997 by phone conference at 9:00 a.m. Plaintiffs appearing by counsel, Douglas G. Dry and Defendants United States of America, Bruce Babbitt, Ada E. Deere, Jim Fields, Curtis Wilson, Perry Proctor, Dennis Springwater, Karen Ketcher and Larry Mings, appearing by counsel, United States Attorney, Bruce Green, Defendant Bob Rabon appearing by counsel (W.G.) Gil Steidley and Eric Janzen, Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat, Naomi O'Daniels, City of Clayton, Terry Bell, Rowland Hall, Mike van Horn, Jimmy Long, Rebecca Johnson and Darrel Kirkes, appearing by counsel, Eric Janzen and (W.G.) Gil Steidley. Defendants Kim Reed, Kenneth Johnson, Steven Flowers and Blake Johnico were present without representation or participation in the Planning Meeting pending application for representation by the U. S. Attorney. Defendants Hoppy Denison, Bill Barrow, Mike Russell and Chris Welch were not included in the Planning Meeting, but telephoned Plaintiff Dry's office to confirm that their positions are the same as Defendant Kim Reed as no attorney of record has been identified.

1. Summary of Claims: Plaintiff alleges Defendants, individually and in their official capacity, under color of law, deprived Plaintiff's civil rights under the Oklahoma State Constitution, the U.S. Constitution, Federal Law, U.S. Treaties with the Choctaw Nation, with additional Federal, State and Civil Tort Claims of Wrongful Arrest, Unlawful Detention, False Imprisonment, Assault and Battery, Malicious Prosecution, and Abuse of Process arising from assault, wrongful arrest, detention and prosecution of Plaintiff's. To these claims the Assistant U.S. Attorney, Bruce Green, neither agrees nor disagrees that these are the Plaintiff's claims pending litigation report from the Department of Interior and Bureau of Indian Affairs. Defendants Robert Rabon, Kim Reed, Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Bill Barrow, Mike Russell and Chris Welch neither agree nor disagree that these are the Plaintiff Is claims pursuant to their non-participation as expressed in the first paragraph above.

2. Summary of Defenses: Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat, Naomi O'Daniels:

The Plaintiff Dry created conditions that were the direct source of his claimed damages and injuries. The Plaintiff Dry's alleged damages and injuries were caused in whole or in part by his own culpable conduct. If the Defendants were at fault, the Plaintiff was comparatively the greater cause of the Plaintiff's claimed damages and injuries. Finally, if the Plaintiff is found to have allegations contained in his Complaint, the cause of the damages and injuries was the negligence and lack of due care of persons over whom these Defendants had no supervision, direction or control.

The Defendant Jack England at all times acted within his capacity as Police Chief of the City of Talihina and is entitled to qualified immunity. Likewise, Talihina City Council members, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels at all times acted within their authority as municipal officers of the City of Talihina and are entitled to qualified immunity from suit. Moreover, these Defendants did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

There has been no pattern or course of conduct by these Defendants to create an inference of a Constitutional violation cognizable under 42 U.S.C. 1983. Further, the Plaintiff has failed to state a claim for Constitutional violations upon which relief may be granted against these Defendants. Rather, these Defendants made every reasonable accommodation to Plaintiff Dry and conducted an independent investigation into the basis for Mr. Dry's detention.

Plaintiff's claims for relief under the Oklahoma Governmental Tort Claims Act (The "Act) fail to state a claim. The Act is the exclusive source of relief for negligence claims against a political subdivision. Here, however, there were no acts of negligence. Thus, the Act does not provide a source of redress for the Plaintiffs. Further, the Act provides exemptions barring liability against the City for certain losses or claims. The Act bars liability for:

1. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter, provision, ordinance, resolution, rule, regulation or written policy;

2. Performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees;

3. civil disobedience, riot, insurance or rebellion or the failure to provide, or the method of providing police, law enforcement or fire protection.

Further, the exemptions stated in the Act are exemptions from all liability. Further still, the limitations in the Act control over general statutory law.

These Defendants deny the Plaintiff Is allegations of liability in their entirety. These Defendants would adopt by reference their defenses raised in their Answers. Further, they reserve the right to amend their defenses as this case develops and additional information is discovered.

Summary of Defenses: Defendants City of Clayton, Terry Bell, Rowland Hall, Mike van Horn, Jimmy Long, Rebecca Johnson and Darrel Kirkes:

The Plaintiffs McConnell and Burlison created conditions that were the direct source of their claimed damages and injuries. The Plaintiffs admitted to the validity of the underlying charges preceding their arrests. Thus, these Plaintiffs alleged damages and injuries were caused in whole or in part by their own culpable conduct. If the Defendants were at fault, the Plaintiffs were comparatively the greater cause of their claimed damages and injuries. Finally, if the Plaintiffs are found to have been damaged or injured as a consequence of the allegations contained in this Complaint, the cause of the damages and injuries was the negligence and lack of due care of persons over whom these Defendants had no supervision, direction or control.

The Defendant Terry Bell at all times acted within his capacity as Police Chief of the City of Clayton and is entitled to qualified immunity. Likewise, Clayton City Council members Rowland Hall, Mike van Horn, Jimmy Long, Rebecca Johnson and Darrel Kirkes at all times
acted within their authority as municipal officers of the City of Clayton and are entitled to qualified immunity from suit. Moreover, these Defendants did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

There has been no pattern or course of conduct by these Defendants to create an inference of a Constitutional violation cognizable under 42 U.S. C. 1983. Further, the Plaintiff has failed to sate a claim for Constitutional violations upon which relief may be granted against these Defendants. Rather, these Defendants made every reasonable accommodation to these Plaintiffs and conducted an independent investigation into the basis of their detention.

Plaintiffs' claim for relief under the Oklahoma Governmental Tort Claims Act (the "Act") fail to state a claim. The Act is the exclusive source of relief for negligence claims against a political subdivision. Here, however, there were no acts of negligence. Thus, the Act does not provide a source of redress for the Plaintiffs. Further, the Act provides exemptions barring liability against the City for certain losses or claims. The Act bars liability for:

1. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy;

2. Performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees;

3. civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection.

Further, the exemptions stated in the Act are exemptions for all liability. Further still, the limitations in the Act control over general statutory law.

These Defendants deny the Plaintiffs' allegations of lability in their entirety. These Defendants would adopt by reference their defenses raised in their Answers. Further, they reserve the right to amend their defenses as this case develops and additional information is discovered.

Summary of Defenses: Defendant Bob Rabon:

General denial of all Plaintiffs' allegations of liability. These Plaintiffs have failed to state a claim upon which relief may be granted as to this Defendant. This Defendant was not involved in any capacity in the events upon which these Plaintiffs have brought their Complaint. Thus, as a matter of law, Mr. Rabon could not violate these Plaintiffs' Constitutional rights. Assuming, arguendo, the Plaintiffs' allegations are true, Defendant Rabon is entitled to qualified immunity from suit.

Summary of Defenses: Defendants U.S.A., Bruce Babbitt, Ada E. Deere, Jim Fields, Curtis Wilson, Perry Proctor, Dennis Springwater, Karen Ketcher and Larry Mings:

Assistant U.S. Attorney, Bruce Green, reserves any and all objections to Plaintiffs' claims pending litigation report from the U.S. Department of Interior and the Bureau of Indian Affairs.

Summary of Defenses: Defendants Robert Rabon, Kim Reed, Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch:

Defendants Robert Rabon, Kim Reed, Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch reserve any and all objections to the Plaintiffs' claim pursuant to their non participation in the Planning Meeting as expressed in the first paragraph above.

Stipulations:

A. Jurisdiction Admitted:

Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels: Yes

Defendants City of Clayton, Terry Bell, Rowland Hall, Mike van Horn, Jimmy Long, Rebecca Johnson and Darrel Kirkes: Yes

Defendant Bob Rabon: No. The Defendant was at all times relevant to the Plaintiffs' complaint a private citizen and private attorney. Mr. Rabon did not have the capacity nor could he at any time violate the Plaintiffs' Constitutional Rights. Consequently, there are no federal issues at stake
and no diversity of citizenship. Thus, this Court does not have jurisdiction to hear the Plaintiffs' claims against this Defendant.

Defendants U.S.A., Bruce Babbitt, Ada E. Deere, Jim Fields, Curtis Wilson, Perry Proctor, Dennis Springwater, Karen Ketcher and Larry Mings: U.S. Assistant Attorney, Bruce Green neither admits nor denies jurisdiction until litigation reports from the Department of Interior and Bureau of Indian Affairs is received.

Defendants Robert Rabon and Kim Reed: Defendants Robert Rabon and Kim Reed neither admit nor deny jurisdiction pursuant to their non participation in the Planning Meeting as expressed in the first paragraph above.

Defendants Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch: Defendants Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch neither admit nor deny jurisdiction pursuant to their non-participation in the Planning Meeting as expressed in the first paragraph above.

B. Venue appropriate:

Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels; Yes

Defendants City of Clayton, Terry Bell, Rowland Hall, Mike van Horn, Jimmy Long, Rebecca Johnson and Darrel Kirkes: Yes

Defendant Bob Rabon: No. The Defendant has interposed an objection to the jurisdiction of this Court. Venue, therefore, would be improper.

Defendants U.S.A., Bruce Babbitt, Ada E. Deere, Jim Fields, Curtis Wilson, Perry Proctor, Dennis Springwater, Karen Ketcher and Larry Mings: U.S. Assistant Attorney, Bruce Green neither admits nor denies venue until litigation reports from the Department of Interior and Bureau of Indian Affairs is received.

Defendants Robert Rabon, Kim Reed, Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch: Defendants Robert Rabon, Kim Reed, Kenneth Johnson, Steven Flowers, Blake Johnico? Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch neither admit nor deny venue pursuant to their non participation in the Planning Meeting as expressed in the first paragraph above.
C. Facts: none

D. Law:. none

4. Discovery Plan: The parties jointly propose to the Court the following discovery plan:

Discovery will be needed as to all facts of the case.

All discovery commenced in time to be completed by September 26, 1997.

Maximum of 30 interrogatories by each party to any other party. Responses due 30 days after service.

Maximum of 30 requests for admission by each party to any other party. Responses due 30 days after service.

Maximum of 40 depositions by Plaintiffs and 40 by Defendants.

Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels: Disputed factual contentions of Plaintiff Dry and Dry's prior history including social, educational, political and occupational background. Discovery will also be required on the alleged damages, the circumstances regarding claims of liability, the basis for Plaintiff's claims and upon all defenses to be used by these Defendants.

Defendants City of Clayton, Terry Bell, Rowland Hall, Mike van Horn, Jimmy Long, Rebecca Johnson and Darrel Kirkes: Disputed factual contentions of the Plaintiffs Juanita McConnell and Rosie Burlison, these Plaintiffs' prior history including social, educational, political and occupational background. Discovery will also be required on the alleged damages, the circumstances regarding claims of liability, the basis for Plaintiffs' claims and upon all defenses to be used by these Defendants.

Defendant Bob Rabon: Disputed factual contentions asserted by the Plaintiffs Dry, McConnell and Burlison, these Plaintiffs' prior history including social, educational, political and occupational background. Discovery will also be required on the alleged damages, the circumstances regarding claims of liability, the basis for Plaintiffs' claims and upon all defenses to be used by Defendant Rabon.

Each deposition limited to the following time periods unless extended by agreement of parties:

Douglas G. Dry 40 hours
Juanita McConnell 40 hours
Rosie Burlison 40 hours

The amount of hours listed below are limited as to Plaintiffs' time for deposition:

Jack England 4 hours
Malcomb Wade 2 hours
Niky Hibdon 2 hours
Lloyd James 2 hours
John Wheat 2 hours
Naomi O'Daniels 2 hours
Terry Bell 4 hours
Rowland Hall 2 hours
Mike van Horn 2 hours
Jimmy Long 2 hours
Rebecca Johnson 2 hours
Darrel Kirkes 2 hours

No other agreements reached as to length of each deposition as to any other Defendants or witnesses pursuant to U.S. Attorney, Bruce Green, Defendants Robert Rabon, Kim Reed, Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch positions stated throughout this planning meeting report.

5. All parties consent to trial before Magistrate Judge? No

6. Settlement Plan:

Settlement Conference requested after October 27, 1997

Other ADR (explain)

7. Estimated Litigation Costs:

A. Plaintiffs

(1) Through discovery cutoff $150,000
(2) Discovery cutoff through trial $200,000
(3) Appeal $100,000
Total $ 450,000

B. Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat, Naomi O'Daniels:

(1) Through discovery cutoff $ 35,000
(2) Discovery cutoff through trial $ 25,000
(3) Appeal $ 10,000
Total $ 60,000

C. Defendants City of Clayton, Terry Bell, Rowland Hall, Mike van Horn, Jimmy Long, Rebecca Johnson and Darrel Kirkes:

(1) Through discovery cutoff $ 35,000
(2) Discovery cutoff through trial $ 25,000
(3) Appeal $ 10,000
Total $ 60,000

D. Defendant Bob Rabon:
(1) Through discovery cutoff $35,000
(2) Discovery cutoff through trial $25,000
(3) Appeal $10,000
Total $60,000

E. Defendants United States of America, Bruce Babbitt, Ada E. Deere, Jim Fields, Curtis Wilson, Perry Proctor, Dennis Springwater, Karen Ketcher and Larry Mings: United States Attorney, Bruce Green reserves statements as to estimated litigation costs pending litigation report from the U.S. Department of Interior and the Bureau of Indian Affairs.

(1) Through discovery cutoff $
(2) Discovery cutoff through trial $
(3) Appeal $
Total $

F. Defendants Robert Rabon, Kim Reed, Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch: Reserves statements as to estimated litigation costs pursuant to their non participation in the Planning Meeting as expressed in the first paragraph above.

(1) Through discovery cutoff $
(2) Discovery cutoff through trial $
(3) Appeal $
Total $
GRAND TOTAL (All Parties) $

$1,500,000 Actual amount in controversy is alleged by the Plaintiffs, however, Defendants United States of America, Bruce Babbitt, Ada E. Deere, Jim Fields, Curtis Wilson, Perry Proctor, Dennis Springwater, Karen Ketcher and Larry Mings by and through United States Attorney, Bruce Green neither admits nor denies the amount in controversy alleged by Plaintiffs pending litigation report from the U.S. Department of Interior and the Bureau of Indian Affairs.

Defendants Robert Rabon, Kim Reed, Kenneth Johnson, Steven Flowers, Blake Johnico, Hoppy Denison, Mike Russell, Bill Barrow and Chris Welch neither admit nor deny the amount in controversy alleged by Plaintiffs pursuant to their non participation in the Planning Meeting as expressed in the first paragraph above.