JOHN E. DOWDELL, Chief District Judge.
This case arises from the arrest and prosecution of Plaintiff, Bradley Ray Carter (Bradley or Plaintiff), on allegations that he sexually abused C.W., a six-year old girl who at one time was Bradley's stepdaughter.
Between the fall of 2009 and December, 2011, Bradley and C.W.'s mother, Amanda, lived with Bradley's mother and brother (Daniel) in a house in Pawnee County, Oklahoma. From late 2011 until April 2012, Bradley, Amanda, and C.W. lived with Amanda's mother, Krista, in Creek County, Oklahoma. In April 2012, Bradley and Amanda separated, and Bradley moved to a different home.
On June 21, 2012, Amanda, C.W., and Amanda's mother (Krista) and grandmother (Bonnie) went to the Creek County Sheriff's Office (CCSO) to report that C.W. had been sexually assaulted. They spoke to Deputy Chrissie Underwood. Amanda informed Underwood that C.W. had reported to Krista that Bradley previously used his finger, his "hoohoo," and a pink vibrator, to touch C.W. (Creek County Aff., Doc. 49-3, 49-5). Amanda gave a written statement, reporting that C.W. disclosed on June 20 and 21, 2012 that "Brad" had touched her with his fingers, a pink vibrator, and his "whowho," and "it happened a lot." (Doc. 49-5).
Deputy Underwood spoke with John Davis, who at the time was a detective in investigations for the CCSO, about performing a forensic interview.
During the interview, C.W. identified on female and male diagrams various anatomical parts, including eyes, lips, belly button, back, arms, legs, nose, knees, head, "boobs," "butt," and "hoo hoo." (Doc. 78-3). C.W. disclosed that Bradley used his index finger, his "hoo hoo," and a pink vibrator to touch her. She said that he put his "hoo hoo" inside of her. (See id.; see also Doc. 49-3). C.W. stated that one incident occurred at Grandma's (Krista's) house "in Ashley's old room." (Doc. 78-3). C.W. identified Ashley as her mom's sister and thus as C.W.'s aunt. (Id.). She further reported that other instances of the sexual contact occurred in her "mom and Brad's room" at Daniel's house. (Id.). C.W. indicated that it happened more than three times and "a lot," and that Bradley told her not to tell anybody or he would get thrown in jail. (Id.).
After the forensic interview, Underwood spoke again with Amanda and with Amanda's mother, Krista. Amanda subsequently brought a pink vibrator to the CCSO. Underwood contacted Bradley via phone, but Bradley refused to speak with Underwood on the advice of Bradley's father, Gary Carter, who is a police officer.
On July 6, 2012, Deputy Underwood signed a Probable Cause Affidavit for Arrest Warrant, which described the information that she had received from talking to Amanda and interviewing C.W., including that Bradley had put his "hoo hoo" inside of her and touched her with his finger and a pink vibrator. (Doc. 49-3).
Sometime after she met with Amanda, Krista, and C.W. on June 21, 2012, Deputy Underwood contacted the Jennings Police Department to report her belief that some of the alleged abuse may have occurred in the City of Jennings. On June 28, 2012, Amanda provided a voluntary written statement to the Jennings Police Department, reporting C.W.'s statements about being touched by Bradley with his fingers, vibrator, and "ho ho," and that at least one incident happened at their "old house" in Jennings. (Doc. 49-9). Krista also provided a written statement to the Jennings Police Department, describing C.W.'s June 20 and 21, 2012 allegations of prior sexual abuse by Bradley. (Doc. 49-10).
On July 2, 2012, the Jennings Police Department referred its investigation to the Pawnee County Sheriff's Office (PCSO) after determining that Daniel's house, where CW stated that some of the sexual abuse had occurred, was outside Jennings city limits, in Pawnee County. Nick Mahoney, a PCSO Deputy, spoke with CCSO Deputy Underwood on July 2, 2012 and received Underwood's files on the case. Deputy Mahoney also reviewed a video of Underwood's forensic interview of C.W. On July 9, 2012, Mahoney interviewed Amanda and Krista, who again described C.W.'s report that Bradley had sexually abused her. Amanda also told Mahoney that no other men had been in a position to abuse C.W. (Doc. 49-11 at 12 [Dep. p. 39:15-22]).
On July 20, 2012, Amanda signed a statement affirming the accuracy and truth of the information she had provided to Deputy Mahoney at the PCSO. (Doc. 49-14). On July 23, 2012, Mahoney submitted an Arrest Warrant Affidavit in Pawnee County, for first degree rape and rape by instrumentation (Doc. 49-12). That affidavit referenced statements by Underwood, Amanda, and Krista in support of probable cause. (Id.). Mahoney's probable cause narrative also stated that he "attempted contact with Bradley Carter but he stated he did not want to speak with me with or without an attorney." (Id.). In his deposition, Mahoney indicated that Bradley's father Gary told Mahoney that Bradley did not want to speak with him. (Doc. 67-2 at 2-3).
On August 14, 2012, based on Deputy Mahoney's Affidavit, Pawnee County District Judge Matthew Henry issued a felony warrant for Bradley's arrest for the offenses of lewd molestation, rape by instrumentation, first degree rape, and intimidation of a witness. (Doc. 49-16). On August 20, 2012, Bradley turned himself in and posted bail at the Pawnee County Jail.
On December 13, 2012, Creek County Judge Richard A. Woolery held a preliminary hearing in Bradley's Creek County case. Judge Woolery heard testimony from Underwood and viewed a DVD of the forensic interview. C.W. also testified during the preliminary hearing. C.W. identified Bradley and Deputy Underwood in the courtroom, and C.W. testified that Underwood had asked her some questions in a room and that C.W. had told Underwood the truth. C.W. testified that she did not remember what she told Underwood and that she did not "remember today Brad doing anything not nice" to her. (Doc. 49-17 at 35 [emphasis added]).
While C.W. did not or would not repeat her specific allegations in a courtroom, the balance of her testimony indicated that (1) she remembered reporting to her grandmother that Bradley did something "not nice" to her, (2) she repeated that information to her mother, and (3) she also recalled telling Deputy Underwood the same information. (Doc. 49-17 at 32-36). As noted, she also testified that she told Underwood the truth during the interview. (Id. at 28).
Judge Woolery found that C.W. was qualified to testify and determined that Bradley should be bound over for trial:
(Doc. 49-17 at 40-41).
On February 25, 2013, at a suppression hearing before Judge Sam Vassar in Creek County, during cross-examination by Bradley's counsel, Deputy Underwood testified as follows regarding her conversations with Amanda during her investigation:
(Doc. 49-19 at 23-26).
Judge Vassar watched the video of the forensic interview and noted that "the procedure with the child was somewhat more leading than I'm used to, although more leading is expected with the younger children. . . . And the areas where the child testified to the meat of the matter, the child always testified spontaneously and evidently in agreement, because nothing to the contrary was presented, with the prior reporting to family members. And I saw nothing about the mental condition of the child that caused me any questions." (Id. at 38). Judge Vassar further noted, "I was somewhat concerned that we did not follow up the question of whether or not there was a motive to influence the child, because the child does mention in the statement `mama's former husband' or something. . . . But I felt that the leading questions by and large were in a non-critical area and they followed the child revealing something." (Id.).
At the conclusion of the February 25, 2013 suppression hearing, Judge Vassar found that the forensic interview was admissible as evidence. (Id. at 39). However, he raised the issue of Bradley's right to cross-examine and ordered the parties to supply briefs on the issue. (Id.). Judge Vassar subsequently dismissed the case on March 28, 2013. (See Doc. 49-20).
On April 15, 2014, Bradley filed the Complaint in this action. (Doc. 1). He alleges that he was wrongfully arrested, incarcerated, and/or prosecuted, and asserts claims pursuant to 42 U.S.C. § 1983 and Oklahoma law. Plaintiff's Complaint named Davis, in his individual and official capacities; Underwood; Pawnee County Sheriff Mike Waters, in his official capacity; and Pawnee County Sheriff's Deputy Mahoney. On October 27, 2014, Mahoney was dismissed by stipulation. Motions for summary judgment were filed by Underwood (Doc. 49), Davis (Doc. 50), and Waters (Doc. 52). As noted above, Bret Bowling, who replaced Davis as sheriff, has been substituted for Davis in his official capacity. Thus, Underwood and Davis are sued in their individual capacities, and Bowling and Waters are sued in their official capacities. Underwood and Davis assert their respective entitlement to qualified immunity as to Bradley's individual-capacity § 1983 claims.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The courts thus determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. The non-movant's evidence is taken as true, and all justifiable and reasonable inferences are to be drawn in the non-movant's favor. Id. at 255.
Bradley's Complaint asserts claims under 42 U.S.C. § 1983, alleging that Deputy Underwood, in her individual capacity, violated the Fourth Amendment by wrongful arrest and malicious prosecution. Bradley also asserts tort claims under the Oklahoma Governmental Tort Claims Act (GTCA) and asserts that Underwood violated the Oklahoma Constitution. Bradley represents in his response brief that he does not and has never intended to bring any state law tort claim against Underwood. (Doc. 61 at 28 of 30).
Deputy Underwood asserts that she is entitled to qualified immunity on Bradley's claims under 42 U.S.C. § 1983. The general summary judgment standards apply to motions for summary judgment based on qualified immunity. Accordingly, courts must still draw the evidence and reasonable inferences in favor of the non-moving party. See Tolan v. Cotton, 572 U.S. 650, 656-60 (2014); Scott v. Harris, 550 U.S. 372, 377 (2007). In resolving questions of § 1983 qualified immunity at the summary judgment stage, courts engage in a two-pronged inquiry. The first prong "asks whether the facts, `[t]aken in the light most favorable to the party asserting the injury, . . . show the officer's conduct violated a [federal] right.'" Tolan, 572 U.S. at 655-56 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)); see also York v. City of Las Cruces, 523 F.3d 1205, 1209 (10th Cir. 2008).
The second prong asks "whether the federal right was clearly established at the time of the violation." Id. at 656 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). In this Circuit, once qualified immunity is raised by a defendant, the burden shifts to the plaintiff to meet the "heavy two-part burden." See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (quoting Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995); see also Cox v. Glanz, 800 F.3d 1231, 1243 (10th Cir. 2015).
Government officials are shielded from liability if their actions did not violate clearly established federal rights "of which a reasonable person would have known." Tolan, 572 U.S. at 656 (quoting Hope, 536 U.S. at 739). "Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct." Kisela v. Hughes, ___ U.S. ___, 138 S.Ct. 1148, 1152 (2018) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). Courts have discretion to determine "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009).
In support of his Fourth Amendment claims against Deputy Underwood for unlawful arrest and malicious prosecution, Bradley contends there was no probable cause to support his arrest in Creek County because (1) there is evidence that Amanda told Underwood that she thought someone else, rather than Bradley, could have abused C.W., but Underwood failed to follow up on the statement or include it in her probable cause affidavit; and (2) Underwood's investigation was so flawed, biased, and deficient that it could not have produced reasonably trustworthy information to support probable cause.
A law enforcement official violates the Fourth Amendment by knowingly, or with reckless disregard for the truth, making a false statement in a warrant affidavit, or knowingly or recklessly omitting from the affidavit information that, if included, would vitiate probable cause. See, e.g., Franks v. Delaware, 438 U.S. 154, 155-56 (1978); Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990); Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991) (citing cases). In such cases, the Court "measure[s] probable cause by (1) removing any false information from the affidavit, (2) including any omitted material information, and then (3) inquiring whether the modified affidavit establishes probable cause for the warrant." Puller v. Baca, 781 F.3d 1190, 1197 (10th Cir. 2015) (citing Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996)). Thus, the Court must determine whether Deputy Underwood's affidavit would establish probable cause for Bradley's arrest if it had included omitted information that Bradley alleges was material.
"Probable cause is based on the totality of the circumstances, and requires reasonably trustworthy information that would lead a reasonable officer to believe that the person about to be arrested has committed or is about to commit a crime." Cortez v. McCauley, 478 F.3d 1108, 116 (10th Cir. 2007) (citing Maryland v. Pringle, 540 U.S. 366, 371 n.2 (2003)). "The standard of probable cause does not require indubitable or necessarily convincing evidence, but only so much `reasonably trustworthy information' as `to warrant a prudent man in believing that the [arrestee has] committed . . . an offense." Easton v. City of Boulder, Colo., 776 F.2d 1441, 1450 (10th Cir. 1985); see also Shed v. Okla. Dep't of Human Servs., 729 F. App'x 653, 657 (10th Cir. 2018) (unpublished) (quoting Easton, 776 F.2d at 1450 and affirming summary judgment for defendants on § 1983 malicious prosecution claim following the plaintiff's acquittal on charges that he sexually abused his five-year-old stepdaughter). The Supreme Court "has long held that `the term `probable cause' . . . means less than evidence which would justify condemnation,' and that a finding of `probable cause' may rest upon evidence which is not legally competent in a criminal trial." Easton, 776 F.2d at 1450 (internal citations and alterations omitted).
In her affidavit, Deputy Underwood cited the following sources of evidence for probable cause to arrest Bradley: (1) Amanda's report to Underwood that C.W. disclosed sexual abuse by her stepfather; (2) Amanda's written statement that C.W. reported to her grandmother that Bradley had touched her with his finger, his "hoo hoo," and a pink vibrator; and (3) information from Underwood's interview of C.W. on June 21, 2012, in which C.W. reported sexual abuse by Bradley on multiple occasions and in two specific locations. (Doc. 49-3).
Even if a child's testimony may be inadmissible in court, "perhaps because of an inability to understand their oath . . . their statements could nonetheless be used as a basis for a probable cause determination to support the issuance of a warrant." Easton, 776 F.2d at 1450. Further, "[t]he existence of inconsistencies in their statements does not change this principle of law in the least." Id. As the Tenth Circuit has observed:
Id. at 1449.
Here, Underwood's affidavit included certain details of C.W.'s interview that suggested their trustworthiness. For example, C.W. provided details regarding the specific locations where abuse allegedly occurred. She used the word "vibrator," which Underwood believed a six-yearold ordinarily would not know. See id. at 1450 (noting, among other indicia of reliability, that child's statements "were spontaneous and revealed knowledge of things that a child his age could not possibly possess had an event of the kind described not occurred"). C.W.'s statements were also materially consistent with respect to the details C.W. had reported to her grandmother and subsequently repeated to her mother on June 21, 2012.
Bradley contends that Amanda's purported statement to Underwood calls into question the reliability of C.W.'s statements, such that Underwood lacked reasonably trustworthy information to support probable cause. However, there is no evidence that Amanda disclosed any factual information inconsistent with C.W.'s account. Rather, viewed in the light most favorable to Bradley, the evidence, at most, would show that, days after the initial report to the CCSO, Amanda said "that she thought maybe it could have been someone else." (Doc. 61-8 at 23:12-24:9). Such speculation does not vitiate the probable cause that was established by the first-hand report by C.W., in which she described Bradley touching her with his finger, penis, and a pink vibrator. See Easton, 776 F.2d at 1450 (noting that certain inconsistencies "do nothing to undermine the solid core of the children's statements regarding the . . . assault and the location of the perpetrator's apartment").
Even when a parent reports to police that she did not initially believe her child's allegation because her child had previously lied, such information does not negate probable cause that was established by the child's own report:
Hopper v. Fenton, 665 F. App'x 685, 687 (10th Cir. 2016) (unpublished).
Bradley contends that, if Underwood had investigated Amanda's purported statement, she would have discovered that Amanda had a relationship with a registered sex offender, Bryan Anderson, C.W. had stayed the night at Anderson's house, and there was a possible history of sexual abuse in Amanda's family.
Moreover, including in the affidavit the information about C.W. having spent a night in a sex offender's home and about possible sexual abuse in Amanda's family would not have negated probable cause. See Hopper, 665 F. App'x at 687. That is because, notwithstanding such information, C.W. could still have been sexually abused by Bradley, as she consistently reported to her mother, grandmother, and Deputy Underwood. Also, there could be sexual abuse in Amanda's family and Bradley could have sexually abused C.W.; the two are not mutually exclusive propositions. Likewise, even had there been an allegation that Anderson sexually abused C.W. (which has not been alleged), C.W. could also have been sexually abused by Bradley.
It is undisputed that C.W. implicated Bradley in sexual abuse during the interview with Deputy Underwood. C.W. identified the specific locations where alleged abuse occurred. Amanda's initial oral and written statements also reported that C.W. had consistently identified Bradley as her abuser. The circumstances of Amanda's relationship with Anderson and potential sexual abuse in Amanda's family, had they been discovered in Underwood's investigation, do not undermine the "solid core" of the allegations as stated in the Creek County Affidavit. Easton, 776 F.2d at 1450; see also Hopper, 665 F. App'x at 686. C.W. described abuse occurring at the homes which C.W. occupied with her mother and Bradley: the home of Bradley's brother, Daniel, in Pawnee County; and the home of C.W.'s grandmother in Creek County. C.W.'s identification of the alleged sexual abuser was unequivocal; she consistently and repeatedly identified Bradley. In contrast, C.W. did not report any sexual abuse by Anderson or indicate that any abuse happened at Anderson's home.
Bradley also argues that Underwood's investigation was so flawed that it could not have produced reasonably trustworthy information to support a probable cause finding. Bradley's brief recites a series of alleged errors and deficiencies in Underwood's investigation, including that Underwood (a) failed to secure an independent forensic interviewer; (b) failed to form an interagency multidisciplinary team to advise the investigation; (c) used leading and suggestive questions in the forensic interview of C.W.; and (d) "had no physical evidence linked Bradley to the alleged crime." (See Doc. 61 at 11-12, ¶ 13).
Bradley relies on Cortez to argue that, due to the alleged flaws, Underwood's investigation could not have produced reasonably trustworthy information to support probable cause. Cortez is inapposite. In Cortez, the "only information which arguably implicated [the plaintiff] was a statement attributed to a barely-verbal two-year old that her babysitter's `boyfriend' had `hurt her pee pee' [and] was relayed by telephone to the officers, from the nurse, who heard it from the mother who ostensibly heard it from the two-year old." 478 F.3d at 1117. Officers immediately arrested the plaintiff, without interviewing the child or the mother, and they did not seek an arrest warrant. The Tenth Circuit held that "the duty to investigate prior to a warrantless arrest is obviously applicable when a double-hearsay statement, allegedly derived from a two-year-old, is the only information law enforcement possesses." 478 F.3d at 1122. The officers were not entitled to qualified immunity where they "conducted no investigation," relying instead "on the flimsiest of information conveyed by a telephone call." 478 F.3d at 1117-18.
Here, while Bradley faults Underwood's investigative decisions, he does not contend that Deputy Underwood failed to conduct any investigation at all or that a warrantless arrest occurred. Rather, the undisputed facts establish that Underwood interviewed the child, who described sexual abuse by Bradley, after receiving reports from the child's mother and grandmother that the child had similarly reported to them abuse by Bradley. Unlike the plaintiff in Cortez, Bradley was not immediately arrested without a warrant or any investigation. Cortez is plainly distinguishable.
For the reasons set forth above, Bradley has failed to present evidence that Underwood knowingly or recklessly omitted from her affidavit any information that would have vitiated probable cause if it had been included. Accordingly, the Court finds there was probable cause for Bradley's arrest, and his constitutional rights were not violated. Underwood is therefore entitled to qualified immunity as to Bradley's § 1983 claims.
Bradley's Complaint also alleges a violation of his rights under the Oklahoma Constitution, which protects "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." OKLA. CONST. art. II, § 30. His claim is based on Bosh v. Cherokee County Building Authority, in which the Oklahoma Supreme Court recognized a cause of action by a pre-trial detainee alleging excessive force in violation of Article II, Section 30 of the Oklahoma Constitution. 305 P.3d 994 (Okla. 2013), superseded by statute, see Barrios v. Haskell Cty. Pub. Fac. Auth'y, 432 P.3d 233 (Okla. 2018).
Bradley's state constitutional claim against Deputy Underwood is not recognized in Oklahoma law. Since Bosh, the Oklahoma Supreme Court has continued to narrow its holding in Bosh. See, e.g., Perry v. City of Norman, 341 P.3d 689, 692-93 (Okla. 2014); Barrios, 432 P.3d 233.
Even were this Court to extend Bosh to recognize a state constitutional claim under the facts alleged by Bradley in this case, Bosh addressed respondeat superior liability and did not purport to create individual liability. Bradley has not identified legal authority providing for individual liability under Bosh. Other federal courts in Oklahoma have declined to extend Bosh to claims against individuals. Shed v. Oklahoma ex rel. Okla. Dep't of Human Servs., No. 16-383-RAW, 2017 WL 1496039, at *3 (E.D. Okla. Apr. 25, 2017) ("Bosh claims appear to be limited to actions against political subdivisions."); Smith v. Hedgecock, No. 18-CV-46-JHP, 2018 WL 3478893, at *6 (E.D. Okla. Jul. 19, 2018); see also Maher v. Oklahoma, 165 F.Supp.3d 1089, 1093, n.3 (W.D. Okla. 2016) ("Plaintiff points to no legal authority that permits a Bosh claim against an individual actor").
Accordingly, Underwood is entitled to summary judgment on Bradley's Oklahoma Constitutional claim.
As Davis is no longer the sheriff, he is only a party to this action in his individual capacity. Bradley's Complaint alleges claims under § 1983 against Davis "under a supervisory liability theory and for his personal involvement and participation in the violation of Plaintiff's rights. . . ." (Doc. 1 at 2, ¶ 6). However, in response to Davis's motion, "Plaintiff concedes that he does not have" viable § 1983 claims against Davis in his individual capacity. (Doc. 63 at 2-3). Accordingly, Davis is entitled to summary judgment, and all claims against Davis are dismissed.
Sheriff Bowling is the current Creek County Sheriff and has been substituted in his official capacity for the former sheriff, Davis. Accordingly, the Court will consider the official capacity arguments presented in the summary judgment motion originally filed by Davis, as those arguments are applicable to Bowling in his official capacity.
In the § 1983 context, a claim against a state actor in his official capacity "is essentially another way of pleading an action against the county or municipality" he represents. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010). To hold a municipality liable under § 1983, a plaintiff must prove (1) the existence of a municipal policy or custom by which the plaintiff was denied a constitutional right and (2) that the policy or custom was the moving force behind the constitutional deprivation (i.e. "whether there is a direct causal link between [the] policy or custom and the alleged constitutional deprivation"). Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978) (citations omitted); City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Because the Court has determined that Bradley has not presented evidence of a constitutional violation, Bradley's municipal liability claim fails. See, e.g., Hinton v. City of Elwood, Kan., 997 F.2d 774, (10th Cir. 1993) ("A municipality may not be held liable where there was no underlying constitutional violation by any of its officers"); Camuglia v. City of Albuquerque, 448 F.3d 1214, (10th Cir. 2006) (determining City was also entitled to summary judgment where the court determined that there had been no underlying constitutional violation); Fisher v. Koopman, 693 F. App'x 740, 746 (10th Cir. 2017) (unpublished) ("The lack of a constitutional violation likewise dooms the official capacity claims against Detective Koopman and Chief Hecker. . . . Likewise, the failure to train and supervise claim against Chief Hecker fails without a constitutional violation.")
The Sheriff also moves for summary judgment on Bradley's state claims. Under Oklahoma law, a "[s]uit against a government officer in his or her official capacity is actually a suit against the entity that the officer represents and is an attempt to impose liability upon the governmental entity." Speight v. Presley, 203 P.3d 173, 179 (Okla. 2008) (citing Pellegrino v. State ex rel. Cameron Univ., 63 P.3d 535, 537 (Okla. 2003)). Employees sued in such capacity are immune from suit pursuant to GTCA. Id. A claim pursuant to GTCA "shall name as defendant the state or political subdivision against which liability is sought to be established." Okla. Stat. tit. 51, § 163(C); see also Speight, 203 P.3d at 176. An action brought against a county shall name the county's board of commissioners. Okla. Stat. tit. 19, § 4.
Even had Bradley properly named the Board of County Commissioners as required under Oklahoma law, the GTCA specifically provides an exemption from liability pursuant to which "[t]he state or a political subdivision shall not be liable if a loss or claim results from: . . . Execution or enforcement of lawful orders of any court." Okla. Stat. tit. 51, § 155(3); see also North Side State Bank v. Bd. Of Cnty. Comm'rs of Tulsa County, 894 P.2d 1046, 1050 (Okla. 1994). Because the claim against the Sheriff is the result of an arrest warrant, executed by a Judge of the Creek County District Court, the GTCA exemption would apply.
As noted previously, Oklahoma courts have recently declined to extend Bosh to constitutional claims other than the use of excessive force, such that Bradley does not have a claim under the Oklahoma Constitution for any alleged unlawful arrest or malicious prosecution. In any event, the evidence does not support his claim that he was arrested without probable cause or that he was maliciously prosecuted. Bradley's state law claims against Sheriff Bowling do not survive summary judgment.
Bradley has also sued Pawnee County Sheriff Mike Waters under Oklahoma law, asserting that Waters is "vicariously liable . . . for Plaintiff's tort claims" and "for the violations of Plaintiff's rights under the Oklahoma Constitution." (Doc. 1 at 14-15, ¶¶ 52, 57). His claims are premised upon the same theories asserted as to Sheriff Bowling. As a result, the claims against Sheriff Waters are subject to dismissal for the same reasons set forth above in Part V above.
There is no genuine dispute of material fact, and the defendants are entitled to judgment as a matter of law on Bradley's claims. Accordingly, the motions for summary judgment (Doc. 49, 50, and 52) are
SO ORDERED.
