Clark v. Colbert
Opinion
This case involves an encounter between law enforcement and a schizophrenic individual suffering a psychotic episode. Officers from the Wagoner County Sheriff's Department responded to a call from Gary Clark's brother, who was having troubling restraining him. The Sheriff's Department, in turn, requested help from the neighboring Broken Arrow Police Department. The Broken Arrow officers tried to subdue Clark through nonlethal means. Those means failed. The officers thus resorted to lethal force, shooting Clark as he charged them with a large kitchen knife. Clark ultimately survived his gunshot wounds, but still has not fully recovered.
Clark now brings this lawsuit claiming numerous violations of his constitutional, federal-statutory, and state-common-law rights. As relevant here, the district court granted summary judgment to the Wagoner County Board of Commissioners, Wagoner County Sheriff Robert Colbert, and former Wagoner County Jail Nurse Vicki Holland on Clark's claims against them.
We affirm. Given the undisputed facts, a reasonable jury could not find the officers violated Clark's Fourth Amendment right to be free from excessive force. In addition, Clark has failed to adequately brief issues necessary to justify reversal on his Oklahoma-tort and Americans with Disabilities Act (ADA) claims. Finally, Clark has not marshaled evidence sufficient to prove he received constitutionally inadequate medical care while incarcerated.
I. Background
We recount the facts in greater detail as they relate to our analyses of the specific claims at issue. In broad strokes, however, *1261 this lawsuit arises from the arrest and detention of Gary Clark. Clark suffers from schizophrenia. His brother helps him manage his illness. As part of this arrangement, Clark lives in a small cottage on his brother's property in Wagoner County, Oklahoma. On August 18, 2014, Clark's brother went to check on Clark in the cottage. Caught in the midst of a psychotic episode, Clark lunged at his brother with a large kitchen knife, causing a small cut. Clark's brother called the Sheriff's Department. In the ensuing confrontation between Clark and local law enforcement, the officers used progressively severe tactics to secure Clark's arrest. This culminated in the officers shooting Clark as he charged them with the knife. Clark was taken to the hospital for emergency care. He later received ongoing medical attention as he recovered from his wounds in the Wagoner County Jail.
Following his release, Clark sued. He raised numerous claims stemming from his arrest and incarceration, five of which relate to this appeal. First , Clark alleged Wagoner County Sheriff Robert Colbert-in both his personal and official capacities-violated Clark's Fourth Amendment right against unreasonable seizures. Second , Clark claimed a right to recover against the Wagoner County Board of Commissioners under Oklahoma tort law for the same police conduct. Third , Clark claimed entitlement to relief from the County Board under the ADA for the Board's alleged failure to properly train its officers to accommodate mentally ill arrestees. Finally , Clark claimed a right to recover from Nurse Practitioner Vicki Holland for her allegedly inadequate treatment of his injuries in the Wagoner County Jail.
II. Analysis
Clark contends the district court erred in granting summary judgment on his claims of excessive force, Oklahoma tort liability, ADA liability, and inadequate medical treatment.
We review district court grants of summary judgment de novo.
White v. York Int'l Corp.
,
With that standard of review in mind, we turn to Clark's claims.
A. The Excessive Force Claim
The Fourth Amendment prohibits state and federal governments from making "unreasonable ... seizures." U.S. Const. amend. IV ;
see
Terry v. Ohio
,
But an excessive force claim must clear the Fourth Amendment's " 'objective reasonableness' standard."
Cordova
,
We look to the specific circumstances of the confrontation in evaluating these interests.
See, e.g.
,
Kisela v. Hughes
, --- U.S. ----,
Clark has sued Sheriff Colbert in both his personal and official capacities for the police officers' use of force in this case. Clark's failure to prove an underlying constitutional violation, however, justifies summary judgment on both claims.
See, e.g.
,
Porro v. Barnes
,
The undisputed facts show that no Fourth Amendment violation occurred. On the day of the incident, the Wagoner County Sheriff's Department responded to Clark's brother's call for help first. Sheriff's Deputies Robbie Lively and Jason Hathcoat arrived at the Clark residence just before 4:00 p.m. They confronted an irritated Clark standing on the front porch of his cottage with a long kitchen knife in hand. Their attempts to communicate with Clark failed. Rather than submit to arrest, Clark made obscene and threatening gestures toward the officers. The Wagoner County deputies did not use force against Clark at this time. Instead, after the arrival of Major Dustin Dorr, the Wagoner County force requested assistance from the Broken Arrow Police Department.
The Broken Arrow officers arrived roughly ten minutes later. Upon their arrival, the Broken Arrow officers began planning and implementing an arrest strategy. As requested, they had brought with them an array of nonlethal resources for accomplishing arrests. Broken Arrow Captain Patrick DuFriend decided the officers would first fire on Clark with a pepperball launcher. This device uses compressed gas to propel small, round projectiles that burst open on impact, releasing a pepper-spray-like irritant from a distance.
See
Nelson v. City of Davis
,
*1263 At Captain DuFriend's direction, the officers formed into a half-horseshoe around Clark's front porch. They again commanded Clark to drop his knife and submit to arrest. When Clark did not comply, Captain DuFriend directed another Broken Arrow officer to begin firing pepperballs.
But the pepperballs did not subdue Clark. Instead, Clark charged the officers with knife still in hand. The officers tried to tase Clark, but failed. They thus discharged their firearms. Clark sustained several gunshot wounds, but was ultimately apprehended and taken to the hospital for emergency care.
Clark concedes the use of the pepperball launcher is the only possible basis for an excessive force finding in this case. See Aplt. Br. at 14. And indeed, the officers used their tasers only after Clark charged them with a knife, and employed lethal force only after the tasers failed. Accordingly, we focus our inquiry on the reasonableness of deploying pepperballs in this scenario, given the totality of the circumstances. We conclude no reasonable juror could find this force excessive, and thus affirm summary judgment in Sheriff Colbert's favor.
As an initial matter, Clark essentially argues that the officers had no reason to use force
at all
in this situation, so any use of force would have been unreasonable.
See, e.g.
, Aplt. Br. at 34. Yet Clark's failure to drop the knife and submit to arrest-whether a manifestation of his illness or not-left the officers little choice but to use
some
physical force against him. Even if Clark ultimately was not guilty of a crime, his brother's phone call indicated incapacitation was necessary. And because Clark had already attacked his brother with a dangerous weapon, the officers reasonably treated him as a threat to himself and others. Moreover, because Clark was not responding to verbal commands, the officers' resort to physical coercion could not be categorically unreasonable.
See
A.M.
ex rel.
F.M. v. Holmes
,
The officers did not employ a particularly extreme means of coercion either. On the contrary, they treated Clark with caution, using relatively mild, nonlethal tactics in their initial efforts to subdue him. Clark argues even the pepperballs were unreasonable because he was "contained." Aplt. Br. at 22; see id. at 34, 36. But the option to utilize more violent tactics as a contingency if a suspect attempts to flee will not render unreasonable all less-severe physical means of control.
If anything, the unattractiveness of more coercive alternatives makes the officers' decision
more
clearly reasonable. Using pepperballs likely seemed more humane in the moment than waiting the situation out or spending valuable time tracking down someone who could better communicate with Clark.
Cf.
Fisher v. City of Las Cruces
,
*1264
Finally, the fact that Clark was experiencing a psychotic episode cannot itself prevent summary judgment. Clark's illness factors into our analysis only as one circumstance in the totality. And though we have held police officers can incur liability for "reckless" conduct that begets a deadly confrontation,
see
Allen v. Muskogee
,
This analysis compels affirmance of the district court's Fourth Amendment ruling. For Sheriff Colbert to be liable in any capacity for a violation of Clark's constitutional rights, Clark must show his constitutional rights were, in fact, violated.
See
We therefore affirm the district court's disposition of the claims against Sheriff Colbert. 1
B. The Oklahoma Tort Claim
The district court also held that Clark's state tort claim was similarly infirm. Clark argues the court erred in applying an exception to the Oklahoma Government Tort Claims Act. But Clark's limited critique of the district court's analysis cannot support reversal on appeal.
The Oklahoma Government Tort Claims Act provides "the exclusive remedy for an injured plaintiff to recover against [an Oklahoma municipality] in tort."
Nail v. City of Henryetta
,
The district court found Clark's evidence of Oklahoma tort liability insufficient for multiple reasons. First , the claim failed the Oklahoma statute's discretionary function exception. Second , Clark could not hold the Wagoner County Board liable for the commands and actions of another municipality's police force that it did not control. Finally , said the district court, "the use of the pepperball gun ... was objectively reasonable under the factual circumstances." App. 2750.
*1265 Clark's appeal leaves much of this analysis undisturbed. In fact, Clark only clearly asserts error with respect to the district court's discretionary-function analysis-his brief is silent as to the district court's other two independent bases for rejecting this claim. See Aplt. Br. at 32-33. And reading Clark's Fourth Amendment arguments to apply to the Oklahoma tort issue does not solve the problem; Clark still does not explain why, contrary to the district court's conclusion, we should allow him to hold the County Board responsible for the Broken Arrow officers' actions.
In light of this incomplete argument, we must affirm. Our rules of appeal "require[ ] appellants to sufficiently raise all issues and arguments on which they desire appellate review in their opening brief."
Becker v. Kroll
,
For this reason, we cannot reverse the district court on Clark's Oklahoma tort claim. To be clear, we neither endorse nor reject the district court's unchallenged conclusions. We merely decline to reverse the district court on the basis of arguments Clark has not raised in this court.
C. The ADA Claim
Clark's challenge to summary judgment on his ADA claim fails for the same reason: Clark has not demonstrated error with respect to the district court's determination that the City of Broken Arrow is the only proper defendant for Clark's ADA claim.
Clark claims the Wagoner County Board violated the ADA by not properly training its police officers to handle mentally ill arrestees like himself. According to Clark, this failure-to-train predictably led the officers to forgo reasonable accommodation of Clark's mental illness while arresting him. As a result, Clark argues, he suffered "greater injury or indignity," during his arrest than other arrestees would have.
Gohier v. Enright
,
This theory of liability depends on several legal conclusions we have yet to actually embrace. To begin, we have never squarely held the ADA applies to arrests.
See
J.H. ex rel. J.P. v. Bernalillo Cty.
,
The ADA mandates that "no qualified individual with a disability shall, by reason
*1266
of such disability, ... be subjected to discrimination by any [public] entity."
To be sure, federal regulations specify that the ADA's terms still apply when a municipality discriminates "through contractual, licensing, or other arrangements."
Under Oklahoma law, "[a]n agency relationship generally exists if two parties agree that one is to act for the other."
Garrison v. Bechtel Corp.
,
The district court identified Clark's only apparent evidence of an agency relationship: Sheriff Colbert giving Captain DuFriend "command of the operation," App. 2731, by telling Captain DuFriend to "[d]o what [he had] to do," Aplt. Br. at 7 (quoting App. 514);
cf.
App. 817 (disputing the fact that Captain DuFriend acted independently and not under Sheriff Colbert's supervision). Considered out of context, this fact and subsequent events may have been enough for Clark to survive summary judgment. And indeed, Captain DuFriend
believed
he was acting under Colbert's
authority
, if not formally as an agent of Wagoner County. The district court went on, however, to explain that-according to Oklahoma law governing police action-this hand-off was
not
consistent with an agreement to allow the Broken Arrow police to act on behalf of the Wagoner County Board.
See
App. 2735, 2748-50 (discussing
As with the Oklahoma tort claim, Clark has not challenged this analysis on appeal. Instead, he merely asserts-without authority-that the "initiating agency ... is the entity properly called to answer for the execution of [law enforcement] service." Aplt. Br. at 17. We have said many times that we need not consider broad assertions
*1267
unaccompanied by authority or reference to the record.
Adler v. Wal-Mart Stores, Inc.
,
We therefore cannot disturb the district court's ruling on the ADA claim in the face of Clark's insubstantial challenge.
See, e.g.
,
LaFleur v. Teen Help
,
D. The Medical Needs Claim
Finally, Clark contends the district court erred in granting summary judgment on his medical needs claim against Nurse Practitioner Vicki Holland. We disagree.
The Eighth Amendment forbids government infliction of "cruel and unusual punishment[ ]." U.S. Const. amend. VIII. The federal courts have read this language to include an entitlement to a certain minimum standard of medical care while incarcerated.
See
Estelle v. Gamble
,
That standard includes an objective component and a subjective component.
Martinez v. Garden
,
Clark's medical needs claim arises from the treatment he received while in Wagoner County's custody. Eleven days after his arrest, Clark recovered enough from his injuries to be admitted into the Wagoner County Jail. Throughout his detention at the jail, Nurse Practitioner Vicki Holland 4 oversaw Clark's long-term recovery process, treating him a total of ten times over roughly eleven months. Given the undisputed facts as detailed below, no reasonable juror could find Holland's *1268 treatment violated Clark's constitutional rights.
After Holland's first examination, she made note of Clark's injuries. Some of the gunshot wounds"were seeping," but there was "no active bleeding" nor any "signs or symptoms of infection." App. 86. She thus instructed jail and medical staff to bathe Clark daily, "wash the [gunshot] wounds with soap and water[,] and place dry dressings over the two wounds which were still draining."
Holland then saw Clark four more times over the next month. Her second visit occurred less than a week after the first. At that time, she noted "[t]he [gunshot] wounds on [Clark's] back and abdomen were all healing well with minimal clear drainage." App. 87. But "the incision on [Clark's] right femur was red and warm to the touch and had [begun] draining with a foul odor."
A week later, Holland observed Clark's surgical incision, though "still draining," "had less redness and appeared to be much better."
Holland next examined Clark about a month later. At that time, Clark "was complaining of right knee swelling due to an increase in his activities." App. 88. Holland did not prescribe any additional treatment. Two weeks later, Clark "complained of swelling in his right knee with no increase in pain."
Thereafter, Holland saw Clark sporadically to address several conditions not obviously related to his gunshot wounds. These included a possible hernia on his left side, "a bulge in the center of his abdomen," and an abscess under his arm.
Upon his release, however, Clark followed up with Dr. Dumais-the surgeon who originally operated on his leg. Dr. Dumais identified a failure in Clark's "distal *1269 fixation." App. 1820. Clark's briefing does not explain this diagnosis, but we gather it means the metal plate and screws installed above his right knee to help heal his shattered femur had somehow bent or shifted. Though the severed bone had reunified, the portion just above the knee was now somewhat misaligned.
These facts do not support a medical needs claim.
To begin, Holland's treatment of the gunshot and surgical wounds themselves cannot further Clark's case for liability. On the contrary, Holland oversaw the gradual healing of all three wounds. And Clark does not argue the infection of his leg supports the claim.
See
Aplt. Br. at 46-55. Nor could he, because at no point could a reasonable juror conclude it posed an "obvious" and "excessive risk to [his] health or safety."
Sealock
,
Clark thus stakes his entire claim on Holland's failure to deliver him to Dr. Dumais for a follow-up appointment consistent with Clark's discharge instructions.
See
Aplt. Br. at 51-52. But so-called "gatekeeper liability," Aplt Br. at 51, will not lie here. A reasonable juror
might
conclude Holland knew of but declined to follow the instructions.
See
App. 2459, 2480-81. But a gatekeeper "claim is ... actionable
only
in cases where the need for additional treatment or referral to a medical specialist is
obvious
."
Self
,
In short, neither the objective nor subjective requirements of a medical needs claim can be met on these facts. Nonetheless, Clark contends the Supreme Court's decision in
Kingsley v. Hendrickson
, --- U.S. ----,
III. Conclusion
For the foregoing reasons, we AFFIRM the district court on all issues.
As a result of this disposition, we do not reach the additional arguments Clark has raised in support of his excessive force claims. See Aplt. Br. at 33-46.
It would be difficult for Clark to prove the necessary elements of a failure-to-train claim where, as here, the defendant municipality was not responsible for training the officers who committed the allegedly discriminatory acts. Cf. Aplt. Br. at 29.
Again, this disposition obviates the need to address Clark's other challenges to the district court's ADA ruling. See Aplt. Br. at 18-32.
Nurse Holland is an Advanced Practice Registered Nurse-Certified Nurse Practitioner. This means she "performs in an expanded role in the delivery of health care" beyond that of a Registered Nurse due to advanced educational achievement, knowledge, and specialization.
Reference
- Full Case Name
- Gary CLARK, Plaintiff-Appellant, v. Robert COLBERT, in His Official and Individual Capacity as Sheriff of Wagoner County, Oklahoma; Wagoner County Board of County Commissioners; Dustin Dorr, in His Individual Capacity; And Vicki Holland, in Her Individual Capacity, Defendants-Appellees.
- Cited By
- 80 cases
- Status
- Published