Bryson v. Okla. County Ex Rel. Okla. County Det. Ctr.

261 P.3d 627

2011 OK CIV APP 98

Antonio A. BRYSON, Plaintiff/Appellant,

v.OKLAHOMA COUNTY ex rel. OKLAHOMA COUNTY DETENTION CENTER, Defendant/Appellee.

No. 108,534.

Court of Civil Appeals of Oklahoma, Division No. 2.

June 30, 2011.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Bryan C. Dixon, Trial Judge.AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.Kenyatta R. Bethea, Holloway Bethea & Osenbaugh, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant.David Prater, District Attorney, Sandra Howell–Elliot, Assistant District Attorney, Oklahoma City, Oklahoma, for Defendant/Appellee.JOHN F. FISCHER, Vice–Chief Judge.

¶ 1 Antonio A. Bryson appeals the judgment of the district court granting defendant Oklahoma County's motion for summary judgment. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp.2010, ch. 15, app. 1, and the matter stands submitted without appellate briefing. We affirm the district court's order granting the County's motion for summary judgment with respect to Bryson's tort claims for assault, battery and negligence, Bryson's constitutional claims based on Okla. Const. art. 2, § 9 and the Eighth Amendment to the United States Constitution, and Bryson's claim based on the use of force policy and failure to train. We reverse with respect to Bryson's 42 U.S.C. § 1983 claim based on the Fourth Amendment to the United States Constitution and his claim for violation of Okla. Const. art. 2, § 30, and remand for further proceedings.

BACKGROUND

¶ 2 Bryson was arrested on April 1, 2007, and taken to the Oklahoma County jail. During processing Bryson was verbally abusive to officers and refused to take a TB exam. In order to search Bryson, Scott Miller, a detention officer employed by the Oklahoma County Sheriff's Office, was asked to take Bryson to a changing area and “dress him out” in County jail clothing. When they returned to the processing area, Miller handcuffed Bryson to a bench. Bryson continued his verbal abuse of officers and was inciting other prisoners in the area. Bryson also asked Miller why he was verbally abusing prisoners during this time. Miller decided to move Bryson to a holding cell to keep him from agitating other inmates in the book-in area. Miller took Bryson's handcuffs off and ordered him to stand. Bryson refused. After waiting only a few seconds, Miller grabbed Bryson, stood him up, shoved him into a wall and eventually took him to the floor. Miller ordered Bryson to turn onto his stomach and when Bryson refused, Miller delivered two “knee strikes” to Bryson's back. Bryson turned onto his stomach, was handcuffed and removed from the area. As a result of this incident, the Sheriff's Office conducted an investigation and terminated Miller.

¶ 3 Bryson's action is based on this altercation with Miller and asserts various tort and constitutional claims. He seeks recovery for actual damages in excess of ten thousand ($10,000) dollars and punitive damages. Except for the County, all defendants including Miller have been voluntarily dismissed by Bryson.

¶ 4 The County's motion for summary judgment argues that Miller was acting outside the scope of his employment, and, therefore, the County cannot be held liable for his actions. The County contends that even if Miller were acting within the scope of his employment, it cannot be held liable on the basis of respondeat superior for two reasons: more than vicarious liability is required to show a violation of 42 U.S.C. § 1983, and as to any State claims, the Governmental Tort Claims Act provides the County immunity from Bryson's suit. In addition, the County contends that Bryson can establish no independent policy, procedure, act or custom by the County that resulted in any constitutional violation, and that the Eighth Amendment does not apply to Bryson. Finally, the County argues that the Sheriff's use of force policy is constitutional, that Miller was properly trained and supervised by the Sheriff's Office, and that pursuant to Oklahoma law the County is not responsible for the operation of the County jail or the supervision of detention officers employed by the Sheriff's Office. Bryson's response admits most of the material facts asserted in the County's motion. However, Bryson disputes the fact that Miller was acting outside the scope of his employment, and that he was properly trained and supervised. Bryson's response also asserts as an undisputed material fact that the County jail was overcrowded and understaffed. The County did not reply to Bryson's response. The Order sustaining the County's motion was filed June 24, 2010.

STANDARD OF REVIEW

¶ 5 Rule 13 of the Rules for District Courts of Oklahoma, 12 O.S. Supp.2010, ch. 2, app., governs the procedure for summary judgment in the district court. We review the district court's grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699.

¶ 6 The summary process requires that we determine whether the record reveals only undisputed material facts supporting a single inference that favors the movant's motion for summary judgment. Id. When considering a motion for summary judgment, the evidence and the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Coop., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 55. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court). “Once defendant has introduced evidentiary materials indicating that there is no substantial controversy as to one fact material to plaintiff's cause of action and that this fact is in defendant's favor, plaintiff then has the burden of showing that evidence is available which would justify a trial of the issue.” Runyon v. Reid, 1973 OK 25, ¶ 13, 510 P.2d 943, 946. “Only if the court should conclude that there is no material fact in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.” Copeland, 2000 OK 36, ¶ 8, 4 P.3d at 699.

ANALYSIS

¶ 7 Bryson's petition asserts six theories of recovery: (I) Assault, (II) Battery, (III) Violation of 42 U.S.C. § 1983, (IV) Violation of article 2, § 9 of the Oklahoma Constitution and the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment, (V) Failure to train/supervise/control and (VI) Negligence.¹

I. Assault, Battery and Negligence

¶ 8 The first two theories of recovery in Bryson's petition assert that Miller committed an assault and battery when removing Bryson to the holding cell. “[E]very person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm....” 76 O.S.2001 § 6. Assault and battery require proof of harmful contact by the defendant or the apprehension of harmful contact. OUJI Nos. 19.1 and 19.6. See 12 O.S.2001 § 577.2 (calling for the use of Oklahoma Uniform Jury Instructions when applicable). “Contact” is the intentional touching of another person. OUJI No. 19.7; see 12 O.S.2001 § 577.2. There are no allegations in the petition that would provide a basis for concluding that anyone other than Miller participated in the alleged assault and battery. Therefore, based on the summary judgment record and taking the allegations of the petition as true,² Miller is the only defendant who could have committed an assault or battery and he has been dismissed.

¶ 9 Likewise, Bryson's negligence claim is also based on Miller's intentional conduct, alleged in the alternative to be negligent. In his petition, this claim is specifically asserted against the Oklahoma County Sheriff's Office, Scott Miller, Cliff Uranga, Scott Sedbrook, Renee Tiner, Bobby Carson and John Whetsel based on “the legal theory of respondeat superior.” Although all of these defendants have been dismissed, Bryson's petition asserts a general claim for damages in support of his negligence claim against “the Defendants.” We will assume for the purposes of the County's motion that Bryson contends that the County is liable for Miller's alleged negligence based on respondeat superior.

¶ 10 Whether the County is responsible for any assault, battery or negligent conduct by Miller is dependent on whether Miller was acting within the scope of his employment: “Any act or omission of an officer or employee while acting within the scope of [his/her] [employment/authority] is the act or omission of [the employer].” OUJI 7.7; see 12 O.S.2001 § 577.2. The County argues that it is not liable because Miller acted outside the scope of his employment.

As a general rule, it is not within the scope of an employee's employment to commit an assault upon a third person.... However, this general rule does not apply when the act is one which is ‘fairly and naturally incident to the business,’ and is done ‘while the servant was engaged upon the master's business and be done, although mistakenly or ill advisedly, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business.’ ... An employee's act is within the scope of employment if it is incident to...