No. CIV-97-113-B

DOUGLAS G. DRY, JUANITA
McCONNELL and ROSIE BURLISON,

Plaintiffs,

vs.

UNITED STATES OF AMERICA, et al.,

Defendants.

COME NOW Defendants City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long ("Defendants" unless other-wise specified within the Brief), by and through their attorneys of record, Steidley & Neal, and offer the following Reply to the Plaintiffs' Response to these Defendants' FED. R. Civ. P. 56(b) Motion for Summary Judgment.

Plaintiffs' Brief in Response admits all of these Defendants' Uncontroverted Facts in the Defendants' Brief in Support of their Motion for Summary Judgment. However, Plaintiffs offer three facts under the heading "Statement of Contested Facts." Plaintiffs' proffered facts are not numbered and it is difficult to determine which one of the Defendants' Uncontroverted Facts these facts are offered to dispute. (See EDOK LR 56. 1B) For the sake of clarity, the Defendants will address each one of Plaintiffs' sentences as a proposed fact offered to controvert one of the Defendants' Uncontroverted Facts.

1) Plaintiff McConnell states she was arrested by the Choctaw Nation police for passing out pamphlets. Plaintiff McConnell's assertion may be relevant to some other action against some other Defendants in this case. Here, however, the assertion is irrelevant. The closely-defined claim brought by Plaintiff McConnell is whether these Defendants constitutionally conducted their responsibilities as jailers. Thus, Plaintiff McConnell's ongoing disputes with the Choctaw Nation over the principal reason for her arrest and myriad other issues not concerning these Defendants are irrelevant to whether these Defendants, properly conducted their duties.

It remains undisputed that Plaintiff McConnell was turned over to Defendant Clayton Chief of Police Terry Bell by Choctaw Nation Officer Eldon Hokit following Plaintiff McConnell's arrest. Chief Bell was advised by Officer Hokit that Plaintiff McConnell was being charged with disturbing the peace. (See Defs' Brf in Support of Mtn. for Summ. Judgment at Ex. "B:" Pl. McConnell's Ans to Def City of Clayton's Interrog. at Resp. Nos. 4, 8 (courtesy copy attached)) In fact, Plaintiff McConnell specifically concedes both that Officer Hokit advised Chief Bell of the charges against her and that the charge was disturbing the peace. (See Id.; Pis' Brief in Response at p. 2) Thus, Defendant Bell properly discharged his duties by accepting a prisoner charged with a recognizable, obviously substantive violation of the penal code.

2) Plaintiff McConnell's second sentence concedes that the Choctaw Nation officer transporting her to the Clayton jail advised the Clayton jail personnel about the charges filed against her.

3) Plaintiff McConnell's third sentence claims her request for medical attention was ignored by Defendant Chief Bell. Significantly, Plaintiff McConnell's Amended Complaint against these Defendants does not include any claims relating to this allegedly ignored request for medical
attention. Further, she cites "Pl. Ans to Def City of Clayton Interrog. at Resp. No. 4" in support of this allegation. Plaintiffs Response to Interrogatory Number 4 simply does not support this assertion. Moreover, Plaintiff McConnell's reliance on Exhibit I to Plaintiffs Response to Kim Reed's Motion to Dismiss is equally misplaced. First, there is not an Exhibit 1. Second, Plaintiffs never provided these Defendants' counsel with an intelligible copy of the referenced videotape. Third, to the extent a videotape exists and is intelligible, it is highly likely that any audible statements made would not be sworn. Thus, any content of the videotape would not be suitable for opposition to the instant Motion for Summary Judgment. Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir. 1995) (evidence that would be inadmissible at trial may not be used to defeat a summary judgment motion). Fourth, there is sworn testimony on file attesting to Plaintiffs McConnell's and Burlison's refusal of medical attention while at the Clayton jail. (See Defs' Brf. in Support of Mtn. for Summ. Judgment at Ex. "F:" Resp. to Pl. McConnell's Interrog. to Defs. at Resp. No. I (courtesy copy attached)) Thus, Plaintiff McConnell's asserted fact should be disregarded by the Court.

4) Plaintiffs' fourth sentence refers to Plaintiff Burlison. Here, Plaintiff Burlison asserts her arrest was for videotaping the arrest of Plaintiff McConnell. Again, it appears Plaintiff's bald assertion may be relevant to some other dispute with some other Parties. Here, however, the assertion is irrelevant. Plaintiff Burlison has already conceded that Choctaw Nation Officer Bill Barrow advised Defendant Clayton Chief of Police Terry Bell of the charges against Plaintiff Burlison when she was initially taken to the Clayton jail. (See Defs' Brf. in Support of Mtn. for Summ. Judgment at Ex. 'A" Pl. Burlison's Ans to Def City of Clayton's Interrog. at Resp. Nos. 4, 8 (courtesy copy attached)) As with Plaintiff McConnell, Plaintiff Burlison admits in her
discovery responses that Chief Bell was advised she was being charged with disturbing the peace and resisting arrest. (See Defs' Brf. in Support of Mtn. for Summ. Judgment at Ex. "A" Pl. Burlison's Ans to Def City of Clayton's Interrog. at Resp. No. 4 (courtesy copy attached)) Thus, Defendant Bell properly discharged his duties by accepting a prisoner charged with a recognizable, obviously substantive violation of the penal code.

5) Plaintiffs' fifth sentence simply confirms the Clayton jail personnel properly inquired about the nature of the charges for which Plaintiff Burlison was to be detained in the Clayton jail. This is precisely the proper inquiry for a jailer to make of an arresting officer about a prisoner. Significantly, neither Plaintiffs McConnell nor Burlison dispute that they were actually arrested for disturbing the peace and disturbing the peace and resisting arrest, respectively.

Plaintiffs argue the actions of Defendant Clayton Chief of Police Terry Bell are to be imputed to the Defendant City of Clayton in this matter. Here, there is no evidence nor even any allegations to suggest that Chief Bell acted in a manner to establish "final government policy [with respect to] the handling of Choctaw Nation prisoners on the day of the [Plaintiffs'] arrests . . . " as suggested in their Brief

The basis of Plaintiffs' argument appears to be that Defendant Chief Bell will be liable to Plaintiffs for violations of clearly established "rights of which a responsible [sic] person would have known." (Pls' Brf. at p. 3) Plaintiffs' cited passage is taken from a discussion of the applicability of the qualified immunity defense to individual officers. Medina v. City and County of Denver, 960 F.2d 1493, 1497 (10th Cir. 1992). Plaintiffs' Brief asserts that Chief Bell should have known Plaintiffs' detention was in violation of Plaintiffs' right to free speech and free assembly.

Here, however, it is uncontested that Chief Bell was advised by the Choctaw Nation officers that Plaintiff McConnell was being charged with disturbing the peace and Plaintiff Burlison was being charged with disturbing the peace and resisting arrest. This testimony is not from any Defendant or any of the dismissed Defendants - the testimony regarding the substantive charges against the Plaintiffs told to the Clayton Chief of Police by the Choctaw Nation officers is from the Plaintiffs. Consequently, Plaintiffs' assertions that their arrests were actually attempts to deprive them of their rights to free speech and free assembly are without basis.

Here, implicit in Plaintiffs' argument appears to be their disagreement with the decision of the Choctaw Nation officers to arrest the Plaintiffs. However, this is an issue that cannot be resolved by bringing suit against a jailer. As previously noted, it is not the obligation of the jailer to determine whether or not probable cause existed for an arrest. Wood v. Worachek, 618 F.2d 1225, 123 1 (7th Cir. 1980).

Plaintiffs argue that Indian law is a unique body of law on which the Clayton Defendants should have been trained. However, from a jailer's liability perspective, the Plaintiffs were merely detained for disturbing the peace and resisting arrest. These charges do not involve any complicated Indian law interpretations. Plaintiffs do not suggest there is some distinction in Indian law from state or municipal laws for a charge of disturbing the peace. Moreover, liability cannot be imputed to the Clayton Defendants even if the Choctaw Nation officers committed an error in the arrest of the Plaintiffs because the error would have occurred outside the realm of the Clayton Defendants' responsibility. Bryan v. Jones, 530 F.2d 1210, 1215 (5th Cir. 1976).

Finally, Plaintiffs argue that Defendant Bell should not be granted summary judgment because he had actual knowledge of the constitutional violations of the Plaintiffs. Again, the constitutional violations of which Plaintiffs complain are improperly addressed toward any of the Clayton Defendants. The bottom line is that both Plaintiffs have testified the alleged constitutional infirmity for their arrests was not the reason for their arrests reported to the Clayton Chief of Police. Thus, the Court should grant Defendants' Motion for Summary Judgment.

It may be helpful to first summarize Plaintiffs' response to Defendants' Proposition II. In essence, Plaintiffs argue the Choctaw Nation arrested Plaintiffs without probable cause, criminalized their freedom of speech, detained them without bond and denied them of notice of criminalized behavior. The City of Clayton signed a cross-deputization agreement with the Choctaw Nation, but the City allegedly did not train its officers on the differences between Oklahoma laws and Indian laws. Therefore, according to Plaintiffs, the alleged failure of the City of Clayton to train its officers harmed Plaintiffs.

Again, Plaintiffs have not disputed that the basis for their detention in the Clayton jail was their arrests for disturbing the peace and resisting arrest. The litany of other alleged bases for their arrests, whether real or imagined, is simply beyond the scope of a claim for jailer's liability against the Clayton Defendants.

One of the expressed purposes of the cross-deputization agreement is the detention of Choctaw Nation suspects in the Clayton jail. (See Defs' Brf. in Support of Mtn. for Summ. Judgment at Ex. "C:" Cross-Deputization Agreement at ¶ 3 (courtesy copy attached)) Here, it is
simply not reasonable for Plaintiffs to argue that a brief detention on a charge of disturbing the peace invokes any constitutional issues due to the interrelation of Oklahoma and Indian laws. Further, Plaintiffs cannot articulate any type of training that should have caused Chief Bell to repudiate the cross-deputization agreement and to refuse to detain Plaintiffs in the Clayton jail.

It is clear from the undisputed facts that Chief Bell was thoroughly trained for the task of accepting prisoners from the Choctaw Nation. Here, the Court should grant Defendants' Motion for Summary Judgment and dismiss Plaintiffs' Amended Complaint.

It is axiomatic that individually-named council members and employees of a municipality enjoy a qualified immunity from suit. Plaintiffs argue they were detained "for passing out literature and videotaping an arrest." (Pls' Brf. at p. 5) However, Plaintiffs do not even allege that the Defendants were aware of this "fact." Moreover, it is undisputed that the only thing Chief Bell was told prior to the Plaintiffs' detention in the Clayton jail was that Plaintiffs' arrests were for disturbing the peace and resisting arrest. A detention for disturbing the peace and resisting arrest is obviously not a violation of a clearly established law. Therefore, the individual Defendants should be granted qualified immunity.

It is equally significant to note that Plaintiffs have offered no evidence, testimony or allegations upon which to premise a claim for individual liability against Defendants Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long. Likewise,
Plaintiffs' Brief does not even offer to support their Oklahoma Governmental Tort Claims Act
claim against these Defendants. Thus, Plaintiffs' claims should be dismissed for failing to state a claim.

Plaintiffs' Brief apparently abandons any claim for punitive damages in this case. The Defendants request this Court to strike Plaintiffs' claim for punitive damages against the Defendants.

WHEREFORE, premises considered, Defendants City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long move this Court for Judgment as a matter of law, and for such other and further relief to which they may be justly entitled.

Respectfully submitted,

STEIDLEY & NEAL
Attomeys for Defendants City of Clayton,
Terry Bell, Rowland Hall, Mike Van Horn,
Darrel Kirkes, Rebecca Johnson and Jimmy Long