Case No. CIV-97-113-B

DOUGLAS G. DRY; JUANITA McCONNELL;
and ROSIE BURLISON,

Plaintiffs,

V.

CITY OF TAHLEQUAH; 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; and JIMMY LONG, in both his official and individual capacities,

Defendants.

This matter comes before the Court on Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels' Motion for Summary Judgment filed June 9, 1999 (Docket Entry #177). A timely response and a timely reply were filed to the Motion. Upon review and consideration of these pleadings, this Court renders the ruling reflected herein.

On September 4, 1995, Plaintiff Douglas Dry ("Dry") was arrested by Tribal Police Officers of the Choctaw Nation at Labor Day festivities in Tuskahoma, Oklahoma. The officers transported Dry to the City of Talihina (the "City") jail. The jailer on duty, Defendant Jack England ("England"), who is also the Chief of Police for the City of Talihina, was informed that Dry was arrested on a charge of resisting arrest. Pursuant to a CrossDeputization Agreement (the "Agreement") between the City, Bureau of Indian Affairs and the Choctaw Nation, Dry was detained in the jail for approximately two hours before being released back into the custody of the Choctaw Nation Tribal Police. During Dry's detention in the jail, England attempted to call the Choctaw Security Office on three separate occasions to discuss the status of the charges against Dry. England was not able to complete his investigation into the Choctaw Nation's charges against Dry before the Choctaw Nation Tribal Police officers returned to take Dry from the jail. England is Council on Law Enforcement Education and Training certified in accordance with Oklahoma law and had eighteen years of law enforcement experience at the time of this incident. Dry was eventually charged in the Choctaw Nation tribal court 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.

The Agreement provides for the use of the City's jail to detain prisoners of any of the agencies who are parties to the Agreement. When prisoners are detained in the jail, the Agreement provides that they shall be detained in accordance with Oklahoma laws, rules, regulations and jail standards applicable to jails in the State of Oklahoma. The Sheriff or Chief of Police, pursuant to Oklahoma law, shall continue to exercise exclusive control of the operation of the local jails.

Dry alleges in the Amended Complaint filed in this case that England "never obtained any statement, nor any formal or informal assertion by the police of the Choctaw Nation as to why [Dry] had been arrested." Dry concludes that England violated his Fifth and Fourteenth Amendment rights guaranteed by the United States Constitution by detaining him without verifying that the Choctaw Tribal Police officers had probable cause of the arrest, thereby giving rise to a claim under 42 U.S.C. § 1983.

Dry also alleges that the City and its city council members, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels (collectively referred to as the "City Defendants") failed to instruct, supervise, control and discipline England to refrain from detaining citizens under the circumstances presented by Dry's arrest in violation of his constitutional rights and § 1983.

Dry also asserts a claim under the Oklahoma Governmental Tort Claims Act against England and the City Defendants for false imprisonment and unlawful detention.

Through their pending Motion, England and the City Defendants contend that (1) England did not act improperly or unreasonably as a jailer for the City jail; (2) Dry lacks any evidence to support his claim that the City Defendants failed to adequately supervise or train England; (3) the individual Defendants are entitled to qualified immunity; (4) the tort claims against the City Defendants should be dismissed because they are immunized by the Oklahoma Governmental Tort Claims Act; and (5) punitive damages are improper. Dry responds that England should have investigated or inquired further into the validity of the charges alleged against him before detaining him. Further, because the Agreement exists between the City and Choctaw Nation, Dry contends that the City Defendants had an obligation to train their officers and jailer in the laws of the Choctaw Nation. Finally, Dry asserts that the individual Defendants are not entitled to qualified immunity because their actions were not objectively reasonable under the circumstances.

Under Federal Rule of Civil Procedure 56(c), summary judgment shall be granted if the record shows that, "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party has the burden
of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 255354, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of a material fact exists, the evidence is to be taken in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).

In regard to the material facts set forth in this Order, there exists no genuine issue. Consequently, the question for this Court is whether the City Defendants are entitled to summary judgment as a matter of law.

I. England's Liability Under 42 U.S.C. 5 1983

Initially, England contends that he cannot be held liable under § 1983 for unreasonably detaining Dry under controlling case authority. Indeed, the Seventh Circuit Court of Appeals has spoken directly on the subject in stating,

Generally, a jailer is liable for the illegal detention of an inmate when he unreasonably detains the inmate for arraignment or release, or possesses an affirmative knowledge of the illegality of the arrest. But if the errors upon which liability is asserted take place beyond the scope of his responsibility, he cannot be found liable where he has acted reasonably and in good faith.

Wood v. Worachek, 618 F.2d 1225, 1231 (7th Cir. 1980) citing Bryan v. Jones, 530 F.2d 1210, 1215 (5th Cir. 1976).

In this case, England detained Dry in the City jail pursuant to the Agreement, the validity of which Dry does not challenge. England was informed at that time that Dry had been arrested for resisting arrest, to which Dry offers no contradictory evidence. Dry was held for a two hour period in the City jail. Dry agrees that upon being informed by Dry of some concern with the underlying foundation for the charge of resisting arrest, England attempted to verify the charges with the arresting law enforcement entity, the Choctaw Nation. However, before England could successfully contact the Choctaw Nation police, the arresting officers with the Choctaw Nation retrieved Dry from the City jail. These actions can only be characterized as reasonable and in good faith. Dry would impose an additional requirement upon England that he make further inquiry as to the probable cause for the arrest at the time of a detainee's placement in the City jail facility. Dry has not cited any authority to this Court for this rigid requirement. Such an onerous obligation is well beyond the scope of England's responsibility, as a jailer, given that he was presented with a
facially valid reason for detention when Dry was first brought to the City jail. Absent some blatant, unmistakable lack of a basis for a detention which should arouse suspicion, a jailer cannot be expected to assume the mantle of a magistrate to determine the probable cause for an arrest. Thus, this Court finds that England's actions as a jailer did not violate Dry's constitutional rights as enforced through § 1983 .

Furthermore, England would also be entitled to qualified immunity because of this Court's findings that he acted reasonably in relation to Dry's detention and that he did not violate Dry's constitutional rights. Generally, government employees are immune from liability for their discretionary actions if their conduct is reasonable in light of clearly established law and the information that the employee possessed at the time of their actions. Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This immunity is one from suit and not merely a defense to liability. Pueblo Neighborhood Health Centers V. Losavio, 847 F.2d 642, 644-45 (10th Cir. 1988); England v. Hendricks, 880 F.2d 281 (10th Cir. 1981) cert. denied, 493 U.S. 1078 (1990).

Summary judgment motions concerning the qualified immunity defense are to be viewed "somewhat differently than other summary judgment rulings." Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir. 1990). Because the immunity is one from suit, as well as from liability, once a defendant has raised the defense, the burden is placed upon the plaintiff to establish that the defendant has violated clearly established law. Id. at 131; Lutz v. Weld County School District, 784 F.2d 340, 342-43 (10th Cir. 1986). A plaintiff must "come forward with facts or allegations to show both that the defendant's alleged conduct violated the law and that law was clearly established when the alleged violation occurred." Losavio, 847 F.2d at 646. "The test of what is 'clearly established law' should be determined in a particularized sense, that is, that the 'contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Garett v. Rader, 831 F.2d 202, 204 (10th Cir. 1987) citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

In this case, this Court has already determined that England acted by reasonably and did not violate clearly established law in the manner in which he detained Dry. As a result, England is also entitled to qualified immunity in relation to the actions he took in detaining Dry.

II. Municipal Liability Under § 1983

Dry seeks to assert municipal liability against the City on two fronts - first, by contending that England was a final policymaker and, second, by contending that the City Defendants failed to train England in the laws of the Choctaw Nation such that he would know that the Tribal Police Officers did not have probable cause to arrest Dry, which ultimately lead to Dry's detention. Municipal liability under § 1983 may be conferred for a single decision if it is made by a municipal policymaker under certain circumstances. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). The decision maker must possess final authority to establish municipal policy with respect to the action ordered and cannot simply have the discretion to exercise certain functions. Id. at 481-83. This authority can be conferred by legislative enactment or through the delegation by an official that possesses the authority. Id. at 483. In this case, Dry simply states without support that England is the final policymaker "respecting the handling of Choctaw Nation prisoners on the day of the arrest." This is simply insufficient to establish ,by evidence or reference to legislative enactment that England.' possessed the kind of policymaking authority contemplated by Pembaur. Furthermore, even if England possessed such authority with respect to the City jail on the day of Dry's detention, nothing that he did on that day in establishing a "'policy" violated Dry's constitutional rights. This Court has already discussed the reasonableness' of England's actions in regard to Dry's detention. Thus, Dry has failed to establish municipal liability of the City under this policymaker theory.

Dry also contends that the City is liable under § 1983 by virtue of its failure to train England as to the "unique" nature of Indian law and its application when a detainee is presented for detention. "[T]he inadequacy of police training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). The United States Supreme Court has explained the application of the deliberate indifference standard in a failure to train context, in stating

[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.

Id. at 390.

In this case, the need for the City to train its jailers on specific Indian laws is not obvious nor would it have made any difference in Dry's detention. This Court has already determined that Dry did not suffer a constitutional deprivation as a result of his detention in the City jail. Given that England was informed that Dry was being arrested for resisting arrest, a charge which is apparent on its face, further training would not have lead to a different result - Dry would have still been detained. As a result, the failure of the City or the City Defendants to train England on Indian law does not amount to deliberate indifference and, therefore, cannot form the basis for § 1983 relief.

III, Qualified Immunity as to § 1983 Claims Against Individual City Defendants

Although it is not immediately apparent from a review of the Amended Complaint that Dry is pursuing the City Defendants in their individual capacity on a § 1983 claim, any such claim that can be gleaned from Dry's allegations are barred by qualified immunity. Dry has failed to identify any actions taken by the City Defendants in their individual capacities which were not objectively reasonable and which lead to a deprivation of Dry's constitutional rights. Consequently, the City Defendants are entitled to qualified immunity as to any § 1983 claim which Dry asserts through the facts presented by the Amended Complaint.

IV. Tort Claims

Dry does not respond to England and the City Defendants' contention that the tort claims asserted against them are barred by the immunity granted by the Oklahoma Governmental Tort Claims Act (the "Act"). The Act immunizes municipal employees from tort liability for actions taken within the course and scope of their employment. Okla. Stat. tit. 51, § 153. Having been presented with no evidence that the actions taken by England and the City Defendants fall outside of the protection provided by the Act, this Court finds that they are entitled to immunity. Further, the failure to respond to these arguments contained within the Motion waives any objection to England and the City Defendants' request for summary judgment and stands as a confession to the factual allegations and legal authorities contained within the Motion. Therefore, the Motion will be granted in this regard.

IT IS THEREFORE ORDERED that Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels' Motion for Summary Judgment filed June 9, 1999 (Docket Entry #177) is hereby GRANTED. Accordingly, Counts V and VI asserted against these Defendants are hereby DISMISSED.

IT IS SO ORDERED this 16th day of August, 1999.