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 Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels ("Defendants" unless otherwise 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.

Plaintiff's Brief in Response admits all of these Defendants' Uncontroverted Facts in the Defendants' Brief in Support of their Motion for Summary Judgment. However, Plaintiff's Brief suggests one allegation under the heading "Statement of Contested Facts." Plaintiff suggests he was "arrested by the Choctaw Nation for passing out pamphlets."

Plaintiffs suggested fact is not applied to any Uncontroverted Fact from the Defendants Brief Thus, it is difficult to determine which one of the Defendants' Uncontroverted Facts this fact is offered to dispute. (See EDOK LR 56. IB)

Plaintiffs assertion may be relevant to his claims against the other named Defendants; however, here, the assertion is irrelevant. The closely-defined claim brought by Plaintiff is whether the Talihina Defendants constitutionally discharged their responsibilities as a jailer and municipal officers. Thus, Plaintiff's ongoing disputes with the Choctaw Nation over the basis or reason for his arrest is irrelevant to whether these Defendants properly conducted their duties.

It remains undisputed that Plaintiff was turned over to Defendant Talihina Chief of Police Jack England by a Choctaw Nation officer following Plaintiffs arrest. Chief England was advised by the officer that Plaintiff was being charged with resisting arrest. (See Defs' Brf. in Support of Mtn. for Summ. Judgment at Ex. "A" Pl. Dry's Ans. to Def. City of Talihina's Interrog. at Resp. No. 3; Ex. "E:" Aff of England at In 2, 3 (courtesy copies attached)) Thus, Defendant England properly discharged his duties by accepting a prisoner charged with a violation of the penal code.

Plaintiff argues the actions of Defendant Talihina Chief of Police Jack England are to be imputed to the Defendant City of Talihina in this matter. Here, there is no evidence nor even any allegations to suggest that Chief England acted in a manner to establish "final government policy [with respect to] the handling of Choctaw Nation prisoners on the day of the [Plaintiff's] arrests as suggested in his Brief.

The basis of Plaintiff's argument appears to be that Defendant Chief England will be liable to Plaintiff for violations of clearly established "rights of which a responsible [sic] person would have known." (Pls' Brf. at p. 2) 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). Thus, Plaintiffs citation of authority does not support the proposition that Defendant England could be liable for discharging his duties as a jailer. Plaintiffs Brief asserts that Chief England should have known that Plaintiff's detention was in violation of Plaintiff's fight to free speech and free assembly.

Here, however, it is uncontested that Chief England was advised by the Choctaw Nation officer that Plaintiff was being charged with resisting arrest. Consequently, Plaintiff's assertions that his arrest was actually an attempt by the Talihina Defendants to deprive Plaintiff of his fights to free speech and free assembly are without basis. Implicit in Plaintiffs argument appears to be his disagreement with the decision of the Choctaw Nation officers to arrest Plaintiff for his demonstration at the Choctaw Nation's Labor Day festival. Moreover, Plaintiff seems to suggest through his "Contested Fact" that the Talihina Defendants should be liable for briefly jailing Plaintiff because of the allegedly improper actions of the Choctaw Nation officers. The law simply does not support Plaintiff's argument.

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). A review of the facts in the Wood case finds that the jailed attorney in Wood successfully argued to the federal district court that the absence of a specific charge filed against him during his detention violated his Fourth and Fourteenth Amendment fights. The Seventh Circuit's decision in Wood v. Worachek concluded that the district court's findings were clearly erroneous. Id. at 123 1. The Wood court held that

Where a prisoner is placed in custody in a city jail, those responsible for his confinement are entitled to a reasonable opportunity to make an investigation into the legal authority to confine that prisoner.

Id. at 1232. The court continued by holding that the jailers would not be liable where the evidence clearly showed that the defendants conducted a reasonable and timely investigation into the basis for the plaintiffs custody and that they acted reasonably in conducting the initial processing of the plaintiff. Id in Wood, the investigation conducted that was considered reasonable by the Seventh Circuit was the jailer's inquiry into the nature of the charge against the prisoner and to locate the identity of the arresting officer.

As observed in the Defendants' Brief in Support of their Motion for Summary Judgment, the case at bar is factually on point with the Wood decision. Here, Plaintiff was brought to the Talihina jail and detained there briefly under the charge of resisting arrest. Plaintiff Dry complained that he did not believe he could be lawfully held on just the charge of resisting arrest. Therefore, Talihina Chief of Police Jack England began to make a series of telephone calls to the Choctaw Nation Tribal Security Office to investigate the status of the charges against Plaintiff Dry. (See Defs' Brf. in Support of Mtn. for Summ. Judgment at Ex. "E:" Aff. of England at ¶ 3, 5 (courtesy copies attached)) Before Chief England could complete his investigation, the Choctaw Nation officers returned and assumed custody of Plaintiff Dry. (Id) Significantly, in addition to the charge of resisting arrest, Plaintiff was also charged with public disturbance, disturbance of a parade, disturbance of the peace, use of language calculated to arouse anger, assault on a police officer and attempting to intimidate an officer. (Amended Complaint at ¶ 54).

Chief England's investigation was conducted at Plaintiffs request. Certainly, there is a public policy interest in not having jailers release prisoners based upon a prisoner's protestation of innocence. See Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986). Thus, under the circumstances presented by the uncontroverted evidence, Chief England's investigation and actions were reasonable and timely. The Court should dismiss Plaintiffs Amended Complaint.

It may be helpful to first summarize Plaintiffs response to Defendants' Proposition II. In essence, Plaintiff argues that a municipality can have a "policy" of deliberate indifference to proper police training. Lacking from Plaintiff's argument is any connection to any action or inaction by the City of Talihina or its officers and officials. It appears from Plaintiffs argument that he is presupposing his arrest by the Choctaw Nation was constitutionally infirm and that the City of Talihina is vicariously liable by detaining him in the Talihina jail. The logic of Plaintiff's arguments do not survive close scrutinization.

First, it is uncontested that Plaintiff was arrested and charged with public disturbance, disturbance of a parade, disturbance of the peace, use of language calculated to arouse anger, assault on a police officer, attempt to intimidate an officer and resisting arrest. Second, it is uncontested that Plaintiff's arrest and the decisions on what charges to formally file were all done well before or well after his brief detention in the Talihina jail. Wood at 123 1; Bryan v. Jones, 530 F.2d 1210, 1215 (5th Cir. 1976) (Errors taking place outside the realm of jailer's responsibility cannot be imputed to jailer acting reasonably and in good faith). Third, it is uncontested that the jail personnel for the City of Talihina were performing strictly ministerial functions and did not act in any discretionary capacity with respect to Plaintiff. Finally, it is uncontested that Talihina Police Chief England conducted a reasonable and timely investigation into Plaintiff's challenges to his arrest. Plaintiffs Amended Complaint should be dismissed.

It is axiomatic that individually-named council members and employees of a municipality enjoy a qualified immunity from suit. Plaintiff argues he was detained "for passing out literature and without a charge from which Plaintiff resisted arrest." (PI's Brf. at p. 5) However, Plaintiff does not dispute he was charged with a number of substantive charges within hours of his arrest. Plaintiff also does not dispute that Chief England conducted a reasonable and timely investigation into Plaintiff's challenges to his arrest. Finally, Plaintiff offers no dispute to the fact that Chief England was properly CLEET certified and had been Cross-Deputized with the Choctaw Nation.

Here, Defendants Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels should not be held liable for not establishing a higher standard of police training than is statutorily required in Oklahoma. Further, Chief England's actions toward Plaintiff closely followed the responsibilities a jailer has toward a prisoner. Therefore, the individual Defendants should be granted qualified immunity.

It is equally significant to note that Plaintiff has offered no evidence, testimony or allegations upon which to premise a claim for individual liability against Defendants Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels. Likewise, Plaintiff's Brief does not even offer to support his 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 Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels 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
Attorneys for Defendants City of Talihina,
Jack England, Malcomb Wade, Niky Hibdon,
Lloyd James, John Wheat and Naomi O'Daniels

I hereby certify that on the 2nd day of July 1999, a true and correct copy of the foregoing was mailed via certified mail with proper postage fully prepaid to the following:

Mr. Douglas G. Dry
Attorney at Law
P.O. Box 637
Wilburton, OK 74578

Peter Bernhard, Esq.
Special Assistant U.S. Attorney
U.S. District Court
Northern District of Oklahoma
333 West 4th Street, Suite 3460
Tulsa, OK 74103-3809


Mr. Steve Shreder
Attorney at Law
P.O. Box 810
Talihina, OK 74571