govinfo:USCOURTS-okwd-5_23-cv-00755-1

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF OKLAHOMA 
 
CRAIG ALLEN PHELPS, 
 
   Plaintiff, 
 
-vs- 
 
DANIEL HOLLIMAN and TOWN 
OF DIBBLE, OKLAHOMA, 
 
   Defendants. 
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)  Case No. CIV-23-755-F 
) 
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) 
) 
 
ORDER 
 Plaintiff Craig Allen Phelps (“Phelps ”) commenced this action seeking to 
recover damages under 42 U.S.C . § 1983 based on claims of (1) use of excessive 
force in violation of the Fourth and F ourteenth Amendments, (2) retaliation in 
violation of the First Amendment, and (3) municipal liability.  In addition, Phelps 
sought to recover damages under Oklahoma law based on negligence.  The court, 
upon motion, previously dismissed the municipal liability claim under Rule 12(b)(6), 
Fed. R. Civ. P.  See, doc. no. 15. 
Defendants Daniel Holliman (“Holliman ”) and Town of Dibble, Oklahoma 
(“the Town”) have now moved for summary  judgment, under Rule 56(a), Fed. R. 
Civ. P., on Phelps’ remaining claims.  See, doc. nos. 32 and 33.  In his motion, 
Holliman specifically asserts that he  is entitled to qualified immunity. 1  Phelps has 
 
1 Holliman raised the affirmative defense of qualified immunity in his answer to Phelps’ complaint.  
See, doc. no. 12, ECF p. 4, ¶ 10.  “Persons sued under § 1983 in their in dividual capacity may 
invoke the defense of qualified im munity.”  Duda v. Elder, 7 F.4 th 899, 909 (10 th Cir. 2021).  
Qualified immunity “protects government officials from liability for civil damages insofar as their 
 
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responded in opposition to both motions.  See, doc. nos. 43 and 45.  Defendants have 
replied.  See, doc. nos. 48 and 49.  Upon review of the parties’ submissions and the 
applicable law, the court makes its determination.  
I. 
Background2 
1. The Incident at the Dibble Police Department 
At approximately 2:00 p.m. on March 16,  2022, Phelps was arrested without 
a warrant by Jessica Dobbs (D obbs), an officer with th e Dibble Police Department 
(DPD), for possession of marijuana.  Do c. no. 32-7, 14:26-14:29.  As Phelps 
recalled, he was arrested for “burning on [his] land.”  Doc. no. 43-2, ECF p. 2, l. 11.  
Dobbs transported Phelps to the DPD.  At the time, Phelps was not wearing a shirt. 
Upon arrival at the DPD, Phelps was placed on a bench and handcuffed to 
wall-mount handcuff rings.  Using only his feet, Phelps took off his tennis shoes and 
socks, leaving him barefoot. 
Although the DPD offense report referred to  both city and state offenses,  a 
decision was made to charge Phelps onl y with municipal code violations.  
Ultimately, no state charges were pursued (and the record does not clearly show the 
actual disposition of the municipal code violations).  
Holliman was an officer with the DPD.  He was present at  the DPD station 
when Phelps arrived there.  During a ll relevant times, Dobbs and Holliman wore 
body cameras.  The DPD also had a stationary  video camera.  Video footage of the 
 
conduct does not violate clearly established stat utory or constitutional rights[.]” Pearson v. 
Callahan, 555 U.S. 223, 231 (2009) (quotation marks and citation omitted). 
2 The court, as required, takes “‘ all the facts in the light most fa vorable to’” Phelps.  Jordan v. 
Jenkins, 73 F.4th 1162, 1171 (10th Cir. 2023) (quoting Emmett v. Armstrong, 973 F.3d 1127, 1135 
(10th Cir. 2020)).  “[T]his generally means adopting the plaintiff’s version of the facts[.]” Palacios 
v. Fortuna, 61 F.4th 1248, 1256 (10 th Cir. 2023).  However, the court does not “have to accept 
versions of the facts contradicted by objective evidence, such as video surveillance footage.”  Id. 
(quotation marks and citation omitted).      
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events, and transcriptions of statements made by Holliman, Dobbs, and Phelps are 
in the summary judgment record.  Doc. nos. 32-5, 6, 7, 8, 9, 10 , 11, 12, 16, 21, 22, 
and 24.    
The bench on which Phelps was detain ed was in a room  where Dobbs and 
Holliman had their desks.  Dobbs’ desk was visible fro m the bench.  Holliman’s 
desk was not.  Holliman’s de sk was next to the build ing’s exterior door, which 
provided access to the station’s parking lo t.  Phelps had entered the DPD through 
that door.  After Phelps was restrained on the bench, the exterior door was opened 
by Dobbs and another unidentifie d individual.  It remained open.  While restrained 
on the bench, Phelps talked to himself,  Dobbs, the unidentified individual, and 
Holliman.     
At one point, Holliman informed Dobbs that Phelps’ mom had said she would 
be at the station in 30 minutes.  Thereaft er, Holliman told Phelps that they were 
waiting for his mom, and if she could bail him out, they would let him go.  If not, he 
had to go to “Grady.”  Doc. no. 32-9, ECF p. 13, ll. 19-20, 24-25, ECF p. 14, l. 2.           
Because Dobbs was going off duty a nd money was not timely received from 
Phelps’ family, Holliman was tasked with transporting Phelps to the Grady County 
Jail. The Town housed arrestees with municipal charges at that jail.  Phelps had been 
“pretty confident” his family was going to  deliver the required money, and he was 
going to leave the DPD.  He was “extremely disappointed” when that didn’t happen.  
Doc. no. 43-2, ECF p. 5, ll. 1-3. 
  Holliman approached Phelps, who was lying down on the bench, and began 
uncuffing him from the wall-mount handc uff rings.  They had the following 
exchange: 
Holliman: “. . . we’re going to get up.” 
Phelps: “Oh, God, don’t hit me.” 
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Holliman: “I’m not going to hit you.” 
Phelps: “Son of a bitch.” 
Holliman: “I’m not going to hit you.” 
Phelps: “But, I’m saying, like, can you call her right now, and you’re like, no 
dude, I will do it at my own leisure and time[.]” 
Holliman: “Because I’m the police, okay[.]” 
Phelps: “Right. I get that.” 
Holliman: “-- and you’re in our custody . . . We don’t do stuff on the time 
frame that you want it done on.” 
Phelps: “Right, I get that, but dig it, man, look at it from my perspective, 
though.  Man, I respect you.” 
Doc. no. 32-6, ECF p. 2, ll. 14-25, ECF p. 3, ll. 1-4; doc. no. 32-5; doc. no. 32-11. 
Holliman told Phelps to “[h]op up” for him, and Phelps complied.  Holliman 
began handcuffing Phelps behind his back.  He had Phelps “[h]op up” again.  Doc. 
no. 32-6, ll. 5, 15; doc. no. 32-5; doc. no.  32-11.  Phelps stood up, and Holliman 
finished handcuffing him.  During this time, they had the following exchange: 
Phelps: “You know what I mean?  So, if I ask you to make a phone call for 
me, that means right now.  Your boss asks you to go make a phone call, you . . . You 
-- you’d get on the phone right now, wouldn’t you?” 
Holliman: “Okay.  You don’t call the shots.” 
Phelps: “But you would if your boss asked you.” 
Holliman: “You don’t call --  yeah, my boss is my boss.” 
Phelps: (laughs) “Point taken, but that ’s what I’m saying . . . I’m used to 
people doing what I say.” 
Holliman: “Well, you don’t have the control around here, man.” 
Phelps: “I bet you I would if it was just me and you.” 
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Holliman: “I bet you, you wouldn’t . . . That’d be the worst mistake of your 
life.” 
Phelps: (laughing) “I bet you I would.  “I’d --” 
Holliman: “You’ve had -- you’ve had chances before.” 
Phelps: “Oh, I’m just saying man -- (l aughs) -- don’t get a ll -- don’t get all 
upset, either.  Hey, I’m not even trying to make light of it.” 
*** 
Phelps: “So, where’s my Mom at? 
Holliman: “. . .  I don’t know.  She said  she was going to be here in thirty 
minutes.” 
Phelps: “Why are you lying (phonetic)?  I thought we were cool, man.  This 
ain’t making me feel like we’re very cool.” 
 Holliman: “Well, man, you’re the one that started talking all that mess.” 
Phelps: “Well, you’re the one who evaded my question.” 
Holliman: “I told you how --”  
Phelps:  “And I apologized --” 
Holliman: “-- it was going to be.” 
Phelps: “Oh. Oh. Yeah?” 
Holliman: “Uh-huh (indicating affirmatively) .  There we go.  Is that tight?  
Not like it could be.” 
Phelps: “No, that’s good, thanks.  But y eah, man, I was just like, why?  Shit.  
I know you ain’t no (unintelligible) and I know you’re not a punk, I’m not talking to 
you like no punk.” 
Doc. no. 32-6, ECF p. 3, ll. 6-23, ECF p. 4, ll. 1-22; doc. no. 32-5; doc. no. 32-11. 
Holliman asked Phelps to sit down on the bench.  Phelps complied.  They had 
the following exchange: 
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Phelps: “. . . all due respect, man.  I really just -- I’m fucking at a[] point right 
now, dude.  I don’t fucking want to live anymore, man, if I can’t get some answers.  
Or get somebody to be on my side.  I don’t have anybody on my side.  Do I?” 
Holliman: “Dude --”  
Phelps: “Look at my face . . . I was punched in my sleep, dude, and it’s like -
- God, I can’t even go to sleep when I want now, man.” 
Holliman: “You would have more people on your side if you weren’t 
confrontational with everybody.” 
Phelps: “Bro -- dude -- I’m a dangerous  motherfucker, but I’m not going to 
attack you.” 
Holliman: “Okay.” 
Phelps: “Why don’t you people understand that?” 
Holliman: “Okay.” 
  Phelps: “Why can’t somebody be eccentric and not be --” 
Holliman: “Just sit there for me, okay?” 
Phelps: “-- and not be violent, physically?  Why, though, Holliman? . . .”    
Doc. no. 32-6, ECF p. 4, ll. 23-25, ECF p. 5, ll. 1-5, 7-19; doc. no. 32-5; doc. no. 32-
11. 
Holliman walked to an interior door in  the DPD, which was a short distance 
from the bench, and opened it.  Phelps stood up.  Holliman told him to sit down.  The 
following exchange occurred:   
Phelps: “Okay, I will.  But why, Holliman? Why can’t somebody just be like 
stupid and yelling and shit all the time? 
Holliman: “Because that’s not how society works.” 
Phelps: “Yeah, but would you rather me be  that or me attacking you with no 
words.” 
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Holliman: “Okay.  That’s not how society works.” 
Phelps: “Right -- well, ideally, I’d want  people screaming at the top of their 
lungs because, hey, life, liberty, and the pursuit of happiness, right?  Even if it’s 
screaming at the top of your lungs.” 
Doc. no. 32-6, ECF p. 5, ll. 21-25, p. ECF p. 6, ll. 1-5; doc. no. 32-5; doc. no. 32-11. 
Holliman, still holding the interior doo r open, called for Dobbs. Phelps 
continued talking to him.  He asked Holliman if he could stand, and he approached 
Holliman.  Holliman put his right arm and hand up and told Phelps to step back, and 
Phelps continued to approach.  Holliman told  him to step back again.  Phelps said 
“Okay.  But I’ve never attack ed anybody.”  Doc. no. 32-6, ECF p. 7, l. 4.; doc. no. 
32-5; doc. no. 32-11.  He sat back down on the bench. 
Dobbs came back into the area.  Holliman walked away from the door, which 
closed behind him.  Phelps sat back on the bench.  Dobbs gave Holliman Phelps’ 
phone and municipal hold papers.  She also put Phelps’ tennis shoes and socks in a 
paper bag.  Thereafter, she took Phelps’ phone from Holliman and put it in the paper 
bag.  During this time, Phelps continued talking, stating: 
Phelps: “. . . I’ve actually been in a lot of fights.  I’ve fucking hurt some 
people, you know what I mean . . . When they put their hands on me . . . You know, 
that  -- that’s always how it started with my brother years ago.  He would attack me 
and then I would, you know, fight him back and he would be injured . . . I mean, I 
know what you’re saying, man.  I’m a good soul.  I’m nothing to be afraid of, man.  
I would kick somebody out from underneath you.  Truth be told . . . I’d be that one 
motherfucker that would help you.  I would, man, and I’m -- and I have been -- you 
ask my . . . grandma what I’ve been doing and what I do every day for the past year.  
I don’t have no circle of friends or nothing, and you guys are my own fucking 
enemies . . . [].” 
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Holliman: “I’m not your enemy.” 
Phelps: “No, that’s what I mean.  I ma de you guys that way, you know what 
I mean?” 
Holliman: “Yeah.” 
Doc. no. 32-6, ECF p. 7, ll.7-9, 15-18, 21-23, ECF p. 8, ll. 1-2, 5-12.  
Holliman approached Phelps, and he asked him to “[h]op up” for him.   
Holliman and Phelps then had following exchange: 
Phelps: “And I’m glad we had that talk.  Where we going?” 
Holliman: “So, we’re going to Grady County right now, okay?  Because your 
Mom hasn’t shown up yet or anything like that.” 
Then, gripping Phelps’ right arm with his left hand, Holliman guided Phelps 
toward the door. Dobbs stood near her desk  with the paper bag containing Phelps’ 
personal items. 
Doc. no. 32-6, ECF p. 8, ll. 16-20; doc. no. 32-5; doc. no. 32-11. 
The first takedown 
 As Holliman and Phelps walked toward the door: 
Phelps: “Let me get this water right here.” 
Holliman: “Huh?” 
Doc. no. 32-6, ECF p. 8, ll. 21-22; doc. no. 32-5; doc. no. 32-11. 
Holliman pulled Phelps back.  Phelps, lo oking at a row of blue lockers near 
the door, said, “[h]old on.” 
Holliman: “No.” 
Phelps: “I’ve got my water.” 
Doc. no. 32-6, ECF p. 8, ll. 23-25; doc. no. 32-5; doc. no. 32-11.3 
 
3 Phelps testified in deposition that he “was extremely thirsty.”  Doc. no. 43-2, ECF p. 12, l. 7. 
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Phelps then lunged toward the blue lockers. 4  Holliman went with Phelps 
toward the blue lockers.  Phelps hit the blue lockers with his head.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Phelps hits the lockers with his head. 
Doc. no. 32-8 at 48:17. 
With both of Holliman’s hands on Phelps’ right arm, Holliman placed his right 
leg and foot in front of Phel ps’ right leg and foot and pr opelled Phelps’ head to the 
wood floor.  Phelps hit the floor head first.   Doc. no. 32-11.  Holliman refers to the 
maneuver as a “hip toss.”  Doc. no. 32, ECF p. 11, ECF p. 15, ¶ 16.   
 
4 Footage from Holliman’s body worn camera does not show any bottled water or any other source 
of water in any of the open shelves of the cabinet or near the blue lockers.  See, doc. no. 32-5; see 
also, doc. no. 32-14.  
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The hip toss. 
Doc. no. 32-8 at 48:19. 
Holliman also went to the floor with Phelps, falling on his right side. Holliman 
then got on top of Phelps and drove Phelps’ head and neck to the floor with the point 
of his right elbow–backed by the weight of his upper body.  Doc. no. 32-11.   
Phelps’ face struck the floor, splitting his chin split open.  Emergency services 
were called.  A few minutes later while lying on the floor, Phelps stated: “I just 
wanted to hit my head on the wall. . . I just  wanted to hit my head.”  Doc. no. 32-6, 
ECF p. 10, ll. 6-8.   
Phelps was transported to Norman Regi onal Hospital for medical treatment.  
Holliman followed Phelps to the hospital.  Phelps complained of his laceration to his 
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chin, a headache, and knee pain.  He re ported a loss of consciousness.  At the 
hospital, the wound to Phelps’ chin was treated.  Medical personnel determined that 
Phelps had a “nondisplaced fracture of the [] nasal spine with some extension along 
the root” but “no instability.”  Doc. no. 32-18, ECF p. 9.  Phelps testified in 
deposition a bone under the corner of his ri ght eye “was broken.”  Doc. no. 43-2, 
ECF p. 6, ll. 23-25, ECF p. 7, ll. 1-3.  Phelps also lost “three front teeth.”  Id., ECF 
p. 7, l. 5.     
2. The Incident Outside Norman Regional Hospital        
Holliman was responsible fo r transporting Phelps to jail after his receipt of 
medical treatment.  Again, Holliman wore a body camera.   Phelps was lying on the 
hospital bed and the following exchange occurred: 
Holliman: “Okay.  Hop up.” 
Phelps: “Violence?  Is that – is that what you’re going to do?” 
Holliman: “No, you’re getting the cuffs behind your back.” 
Phelps: “Oh, yay!  Thank you!  You’re still fucking retarded.” 
Holliman: “All right.  Hop up.” 
Phelps: (laughs) “You know that?” 
Holliman: “Un-huh” (indicating affirmatively). 
Phelps stood up and Holliman handcuffed Phelps’ hands behind his back.   
Phelps: “That’s so funny.  I bet you just can’t keep your fucking hands off me.  
You fucking fag.  I’m pretty fucking hot (phonetic), I get it.” 
Holliman: “All right.  Have a seat.” 
Doc. no. 32-21, ECF p. 3, ll. 7-17; doc. no. 32-16. 
Phelps sat back down on the hospital bed.  The following exchange occurred:   
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Phelps: “You fucking stinking pile of shit.  Oh, you need to go to jail, dude.  
You unprovoked fucking attacked me.  You will lose your badge.  Yeah, and when 
you do, I’ll be waiting there, too.  I’ll smash you.” 
Nurse: “Can I go over a few things with you, brother?” 
Holliman: “Yep.” 
Phelps: “Yeah, please, I’d rather not.”   
Nurse: “You don’t want to -- you don’t want to know?”   
Phelps: “No, and I don’t want you to say nothing to me or him in front of me  
--” 
Nurse: “Okay.”   
Phelps: “-- about me around this motherfucker.” 
Nurse: “Okay.  Well --”  
Phelps: “So, yeah, and no offense, but this motherfucker ain’t seen the last of 
me.  Its -- yeah, he’s going to be in court, you’re going to lose your job -- hey, fuck 
you all the way home, home -- home-boy.  You made the best motherfucking --” 
Holliman: “Well, I’ll be going home to my family, and you’ll be going to jail 
is that all -- is that all --” 
Phelps: “Yeah, I bet you I’m out toni ght.  I bet you I’m out tonight, ho.” 
(laughs) 
Doc. no. 32-21, ECF p. 3, ll. 18-25, ECF p. 4, ll.1-14; doc. no. 32-16. 
Holliman grabbed Phelps by the left arm with his right arm and the nurse gave 
Holliman some papers.  
Phelps continued: 
“I’m very -- I’m in a lot of -- I’m in a lot of danger right now.  That’s all I care 
about.  But, yeah after you lose your fucking job --” 
Doc. no. 32-21, ECF p. 4, ll. 16-18; doc. no. 32-16. 
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 Holliman handed something to the nurse and asked her to give it to “them 
behind the counter.”  Doc. no. 32-21, ECF p. 4, l. 19; doc. no. 32-16.  The nurse said 
she would.   
Holliman escorted Phelps out the door of  the hospital room, holding his left 
arm with his right hand.  Holliman held some papers in his left hand.  Phelps said he 
had some shoes and the nurse responded, “[o]h, all right.”  Doc. no. 32-21, ECF p. 
4, l. 25, ECF p. 5, l. 1; doc. no. 32-16.     
The second takedown 
Holliman began to escort Phelps away from the hospital room.  They stopped.   
The following exchange occurred: 
Holliman: “All right.  Hey, like, right here, right now --”  
Phelps: “You going to hit me?” 
Holliman: “-- if you want to play stupid again, we can go.  Okay?  If not, let’s 
walk.” 
Doc. no. 32-21, ECF p. 5, ll. 3-6; doc. no. 32-16. 
Holliman and Phelps continued to walk in order to exit the hospital.  The 
following exchange occurred:   
Phelps: “No. Oh, wow.  Look at you.  You’re so -- freakin’ (unintelligible). 
Phelps: “Are you trying to pick me up and push me around?  Really?  Dude, 
look at my face.” 
Holliman: “Go.” 
Phelps: “You know I could manhandle you if I wanted to.” 
Phelps: “Really, you’re pushing me around?” 
Doc. no. 32-21, ECF p. 5, ll. 7-12; doc. no. 32-16. 
Holliman and Phelps reached the two hospital exit doors.  Holliman pushed 
the button to automatically open them.    
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Phelps: “Really?  Like --” 
Doc. no. 32-21, ECF p. 5, l. 12; doc. no. 32-16.    
Holliman and Phelps proceeded to walk  out the first exit door.  Something 
occurred to cause Holliman’s body camera to fall off.  He picked the camera up and 
held it in his left hand.  The following exchange occurred:  
Phelps: “Okay, okay.  I get it -- whoa --” 
Holliman: “We’re done.” 
Phelps: Whoa, hey!” 
Holliman: “We’re done.” 
Phelps: “What are you doing?  Okay.  You can’t slam me now, can you?  I’m 
just saying.  You can’t do it now, can’t manhandle me.” 
Doc. no. 32-21, ECF p. 5, ll. 14-20; doc. no. 32-16. 
Holliman and Phelps walked out the second exit door and into the parking lot.  
Holliman continued to hold the body camera in his hand.  The following exchange 
occurred:     
Phelps: “Man, why you do this to me?  HELP!  HELP!” 
Holliman: “Go.” 
Phelps: “HELP! HELP! . . . HELP!”   
Holliman: “Go.”   
Phelps: “HELP!”  
Holliman: “Go!” 
Phelps: “You’re weak.” 
Doc. no. 32-21, ECF p. 5, ll. 20-25, ECF p. 6, ll. 1-2; doc. no. 32-16.  
Holliman took Phelps to the ground, lying on his back. 
Phelps: “Ow, ow, ow.  I get it.  I’d trip me, too.” 
Holliman: “Stop.” 
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Phelps: HELP! Okay, please don’t hit me.” 
Doc. no. 32-21, ECF p. 6, ll. 4-6; doc. no. 32-16.     
The hospital’s surveillance camera of the outside area and parking lot, which 
did not have audio, doc. no. 32-24, starti ng at 00:12 and ending at 00:24, showed 
Holliman walking with Phelps.  Holliman was walking beside Phelps with his right 
hand placed through Phelps’ left arm and holding Phelps’ left shoulder.  Holliman’s 
left hand was holding papers.  Phelps stopped and turned right, away from Holliman.  
Using both hands on Phelps’ shoulders, Ho lliman turned Phelps back to walk 
forward.  Phelps took some steps and again turned to the right and looked back.  
Phelps’ mouth was open wide as if he was yelling.  Using his body and hands, 
Holliman turned Phelps back  around to walk forward and Phelps began resisting.  
Shortly thereafter, Phelps moved away  from Holliman, and Holliman placed his 
right leg behind Phelps’ left knee with a sweeping motion, taking Phelps to the 
ground.  Doc. no. 32-24 at 00:24. 
Holliman refers to the maneuver he pe rformed on Phelps as a “leg sweep.”  
Doc. no. 32, ECF p. 11, ECF p. 18, ¶ 35.          
After Phelps was taken to the ground, a nurse asked Holliman if he needed 
security, and he responded affirmatively.  The nurse called for security.    Phelps 
yelled several times that he did not want to “nowhere” with Holliman.  Doc. no. 32-
21, ECF p. 6, ll. 10, 15, 17.  Holliman told Phelps he was going to jail.  Security 
assistance arrived.  Phelps told security  he did not want to go with Holliman and 
asked one of the officers to go with them.  The security officer told Phelps he had to 
go with Holliman.  A security officer then helped Holliman take Phelps to the police 
car.  Doc. no. 32-24.  The other security officer, along with a nurse carrying papers, 
followed.  It took the security officer and Holliman, one on each side, to get Phelps 
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into the vehicle without further incident.  Id.  Holliman then transported Phelps to 
the jail. 
3. Additional Facts 
Holliman did not indicate in his incident report that Phelps was handcuffed at 
the time of either use of force.  He also stated in the report that at the DPD, Phelps 
became “agitated and aggressive.”  He tried to pull away from him “wildly swinging 
his arms and made a dash towards our supply cabinets and evidence lockers.”   Doc. 
no. 43-5.   
Holliman testified in deposition that af ter the incidents, “Stowell” who later 
became “Chief Stowell” told him that “looking at it from a handcuffed suspect, the 
optics could look bad.”  Doc. no. 43-4, ECF p. 14, ll. 17-18.         
Phelps was bonded out of jail about three days after the incidents with 
Holliman.  Doc. no. 43-2, ECF p. 7, ll. 15-22.  In the exercise of “prosecution 
discretion,” no state charges were filed.  Doc. no.  43-6.  
Over a year later, Phelps commenced th is action.  In his complaint, Phelps 
claims that Holliman, at the DPD and out side Norman Regional Hospital, used 
excessive force against him in violation of the Fourth and Fourteenth Amendments, 
and that Holliman retaliated against him in violation of the First Amendment by 
using excessive force in response to Phel ps criticizing Holliman’s conduct.  Phelps 
seeks to recover damages against Hollima n under § 1983.  Phelps also seeks to 
recover damages against the Town unde r Oklahoma law, claiming Holliman, the 
Town’s employee, was negligent in the use of excessive force. 
II. 
Legal Standard 
 Summary judgment is appropriate where “there is no genuine dispute as to 
any material fact and the movant is entitle d to judgment as a matter of law.”  Rule 
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56(a), Fed. R. Civ. P.  “A di sputed fact is material if it might affect the outcome of 
the suit under the governing law[.]” Palacios, 61 F.4th at 1256 (quotation marks and 
citation omitted).  On summary judgment, the court construes “the facts in the light 
most favorable to the nonmovant and [] dr aw[s] all reasonable inferences in [his] 
favor.”  Id.  And as noted, in qualified immunity cases, this generally means adopting 
plaintiff’s version of the facts, unless the facts are contradicted by objective 
evidence, such as video surveillance footage.  Id. 
 As stated, Holliman moves for summary  judgment asserting the affirmative 
defense of qualified immunity as to Phel ps’ § 1983 claims.  “When a defendant 
asserts qualified immunity in a summary j udgment motion, the plaintiff must show 
that (1) a reasonable jury could find facts supporting a violation of a constitutional 
right and (2) the right was clearly established at the time of the violation.”  Wilkins 
v. City of Tulsa, Oklahoma, 33 F.4th 1265, 1272 (10th Cir. 2022). 
 “‘A clearly established right is one th at is sufficiently  clear that every 
reasonable official would have understood that what he is doing violates that right.’”  
Wilkins, 33 F.4 th at 1272 (quoting Mullenix v. L una, 577 U.S. 7, 11 (2015) (per 
curiam)).  “‘Ordinarily, in order for the law to be clearly established, there must be 
a Supreme Court or Tenth Circuit decision on point, or the clearly established weight 
of authority from other courts must have  found the law to be as the plaintiff 
maintains.’”  Morris v. Noe, 672 F.3d 1185, 1196 (10 th Cir. 2012) (quoting Klen v. 
City of Loveland, Colo., 661 F.3d 498, 511 (10th Cir. 2011)).  “Because the existence 
of excessive force is a fact-specific inqui ry, however, ‘there will almost never be a 
previously published opinion involving exactly the same circumstances.’”  Id. 
(quoting Casey v. City of Fede ral Heights, 509 F.3d 1278, 1284 (10 th Cir. 2007)).  
Thus, the Tenth Circuit “has adopted a sliding scale: ‘The more obviously egregious 
the conduct in light of prevailing constitu tional principles, the less specificity is 
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required from prior case law to clearly establish the violation.’”  Id. (quoting Pierce 
v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004)). 
 In Lowe v. Raemisch, 864 F.3d 1205 (10 th Cir. 2017), the Tenth Circuit stated 
that the “sliding-scale approach may argua bly conflict with re cent Supreme Court 
precedent on qualified immunity” because this approach may allow the court to “find 
a clearly established right even when a precedent is neither on point nor obviously 
applicable.”  Id. at 1211 n. 10.  However, the Te nth Circuit declined to decide 
whether the sliding-scale approach conf licts with Supreme Court precedent.  Id.  
Although the sliding-scale approach “may  arguably conflict” with Supreme Court 
precedent, the Tenth Circuit has not overruled it.  Consequently, the court concludes 
that it still applies.  See, Contreras on behalf of A.L. v. Dona Ana County Board of 
County Commissioners, 965 F.3d 1114, 1135 (10th Cir. 2020) (per curiam) (Baldock, 
J. concurring in part and dissenting in part) (“Until either this Court or the Supreme 
Court sounds the death knell for our slidi ng-scale approach, we are bound to apply 
it rather than merely pay lip service to it.”). 
Nonetheless, the court notes that in Lo we, the Tenth Circuit also stated that 
“[e]ven when no precedent involves facts ‘m aterially similar” [], the right can be 
clearly established if a precedent applies with ‘obvious clarity.’. . .When the public 
official’s conduct is egregious, even a ge neral precedent would apply with obvious 
clarity.”  Lowe, 864 F.3d at 1210 (citation a nd quotation omitted).  More recently, 
in Shepherd v. Robbins, 55 F.4 th 810 (10 th Cir. 2022), the court noted the two 
approaches without getting into a discussion of the difference that application of one 
or the other might have made in that case:  
Plaintiff argues that the “sliding scale” approach should apply to show 
that the unlawfulness of Defendant's  conduct was apparent. Our more 
recent jurisprudence has shifted to  consider “obvious clarity” or 
“flagrantly unlawful conduct” rather than engage in the sliding scale 
approach. See Lowe v. Raemisch, 864 F.3d 1205, 1210–11, 1211 n.10 
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(10th Cir. 2017); Contreras v. Doña Ana Cnty. Bd. of Cnty. Comm'rs, 
965 F.3d 1114, 1123 (10th Cir. 2020) (Carson, J., Concurring). 
Id. at 818 n.5. 
As is discussed below, where this or der addresses the issue of clearly-
established law with respect to the “hip toss” maneuver, the sliding-scale approach 
requires less factual specificity in the pr e-existing case law where the conduct in 
question tends toward the egregious end of th e scale.  At least in the context of the 
case at bar, a search for “obvious clarity ” or “flagrantly unlawful conduct” would 
not yield a result different from that whic h follows from application of a sliding-
scale approach.      
III. 
Analysis 
Use of Excessive Force Claim – Fourth Amendment 
Although Holliman argues in briefing th e Fourteenth Amendment applies to 
Phelps’ excessive force claim, the cour t concludes that the Fourth Amendment 
applies.  Under Tenth Circuit precedent, the Fourth Amendment applies to a person 
arrested and detained without  a warrant and prior to a ny probable cause hearing.  
See, Estate of Booker v. Gomez, 745 F.3d 405, 419 (10 th Cir. 2014); Austin v. 
Hamilton, 945 F.2d 1155, 1160 (10 th Cir. 1991), abrogated on other grounds by  
Johnson v. Jones, 515 U.S. 304 (1995).  At the time of Holliman’s alleged uses of 
excessive force, Phelps had been arrested  and detained without a warrant, but no 
probable cause hearing had occu rred.  Therefore, “the fede ral right at issue is the 
Fourth Amendment right against unreasonable seizures.”  Wilkins, 33 F.4th at 1273.  
In evaluating a claim of excessive fo rce under the Fourth Amendment, the 
court must consider whether the officer’s  actions “‘are “objectively reasonable” in 
light of the facts and circumstances’”  confronting him.  Wilkins, 33 F.4 th at 1273 
(quoting Lombardo v. City of St. Louis,  Missouri, 594 U.S. 464, 466 (2021) (per 
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curiam) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). To assess objective 
reasonableness, the court must evaluate “w hether the totality of the circumstances 
justified the use of force, as ‘judged from the perspective of a reasonable officer on 
the scene, rather than with the 20/20 vision of hindsight.’”  Id. (quoting Graham, 490 
U.S. at 396). 
The Supreme Court in Graham v. Connor identified three non-exclusive 
factors to evaluate whether a use of for ce was excessive: (1) “the severity of the 
crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of 
the officers or others,” and (3) “whether he is actively resisting arrest or attempting 
to evade arrest by flight.”  Graham, 490 U.S. at 396. 
As to the first Graham factor, the Te nth Circuit has stated that “a minor 
offense supports only the use of mi nimal force.”  Wilkins, 33 F.4 th at 1273 (citing 
Perea v. Baca, 817 F.3d 1198, 1203 (10 th Cir. 2016)); see also , McWilliams v. 
Dinapoli, 40 F.4th 1118, 1125 (10th Cir. 2022) (“Because the suspected offense was 
minor, this factor would ‘support[] only the use of minimal force.’”) (quoting 
Wilkins, 33 F.4th at 1273).  
According to the Tenth Circuit, the second Graham factor is “‘undoubtedly 
the most important and fact intensiv e factor in determining the objective 
reasonableness of an officer’s us e of force.’”  Wilkins, 33 F.4 th at 1273 (quoting 
Pauly v. White, 874 F.3d 1197, 1215-16 (10th Cir. 2017)).  In evaluating this factor, 
the court “‘must look at whether the officers or others were in danger at the precise 
moment that they used force.’”  Id. (quoting Emmett, 973 F.3d at 1136).5 
 
5 On October 4, 2024, the Supreme Court granted certiorari in a case presenting the question of 
“[w]hether courts should apply th e moment of the threat doctrine when evaluating an excessive 
force claim under the Fourth Amendment.”  Petit ion for a Writ of Certiorari, Janice Hughes 
Baenes, Individually and as Representative of the Estate of Ashtian Barnes, Deceased, Petitioner, 
v. Roberto Felix, Jr.; Cnty. of Harris, Texas, Respondents, no. 23-1239,  2024 WL 2728079, at *i,  
 
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With respect to the third Graham factor, the court must evaluate “‘whether the 
suspect attempted to flee or actively resisted the arrest or search.’” Wilkins, 33 F.4th 
at 1273 (quoting Harte v. Bd. of Comm’rs of Cnty. of Johnson, Kan., 864 F.3d 1154, 
1191 (10th Cir. 2017)) (alteration omitted).  Like the second Graham factor, the court 
must consider “whether the plaintiff was fleeing or actively resisting at the ‘precise 
moment’ the officer employed the challenge d use[] of force.”  Vette v. K-9 Unit 
Deputy Sanders, 989 F.3d 1154, 1171 (10th Cir. 2021). 
1. Whether Holliman violated Phelps’ Fo urth Amendment rights by using the 
“hip toss” maneuver in the DPD  
a. Severity of the Crime 
The first Graham factor–severity of th e crime at issue–weighs in Phelps’ 
favor.  When Holliman performed the “hip  toss” maneuver against Phelps in the 
DPD, Phelps was being detained and was to be transported to the Grady County Jail 
because of municipal code violations.  The municipal charges were clearly minor 
offenses.  As such, they only warranted th e use of “minimal” force.  Wilkins, 33 
F.4th at 1273.  Common sense tells us that the bounds of “minimal force” will vary, 
depending on what, exactly, is going on between the officer and the arrestee.  Here, 
Phelps certainly invited the application of some degree of force when he decided to 
detour toward the lockers so he could bang his head against them.  But a jury could 
reasonably find that what Holliman actually  did, in the circumstances confronting 
him, cannot be called “minimal” force. 
 
cert. granted, 2024 WL 4394125, Oct. 4, 2024.  The Court h eard oral argument in Baenes on 
January 22, 2025.  In this order, consistent with Tenth Circuit precedent, the court evaluates the 
uses of force complained of by Phelps on the basi s of the facts existing at the “precise moment” 
of the uses of force.  That said, the court quite readily observes that the conclusions reached in this 
order would be the same regardless of how far back  (or, for that matter, forward) we might go in 
marshaling the operative facts. 
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b. Threat to Holliman or Others 
The second Graham factor–whether the suspect poses an immediate threat to 
the safety of the officers or others–also weighs in Phelps’ favor.  The Tenth Circuit 
has stated that “[u]nder the second factor , an officer may use increased force when 
a suspect is armed, repeatedly ignores police commands, or makes hostile motions 
towards the officers or others.”  Donahue v. Wihongi, 948 F.3d 1177, 1196 (10th Cir. 
2020).  There is no evidence of that sort of conduct in this case.     
The video surveillance footage shows that while Dobbs, Holliman, and Phelps 
were waiting for Phelps’ mother to arrive with money, Phelps was docile at times, 
but, at other times, he was, in the ve rnacular, loud and obnoxious.  Although he 
complied with some commands, he was frequently profane, leveling a steady stream 
of invective at Holliman.  At times, Phelps’ comments clearly suggested that he was 
emotionally distraught.   
But the video footage also shows that at  the time he was to be transported to 
the Grady County Jail, Phelps was unarmed  and in handcuffs.  His arms were 
securely restrained behind his back.  He was also in the controlled setting of a police 
station, with another armed officer a few feet away.  At the precise moment that 
Holliman performed the “hip toss” maneuve r, Phelps made no verbal threats or 
aggressive moves toward Holliman or anyone else.  His arms also were not “wildly 
swinging” and was not “dash[ing]” toward the metal cabinet and row of lockers as 
Holliman reported.  As for commands, Phel ps did not comply when Holliman said 
“No,” to Phelps’ statement about getting water.  But Holliman did not instruct Phelps 
or warn him to stop his conduct.  The fact that Phelps wanted to, and did, bang his 
head against the lockers did not expose Ho lliman to a life-threatening situation (or 
anything close to that) which would have justified strong action to neutralize the 
threat.   
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The court concludes that the evidence, viewed in Phelps’ favor, does not show 
that Phelps posed an immediate threat to Holliman or others.   
c. Actively Resisting or Attempting to Flee 
The third Graham factor–whether Phelps actively resisted arrest or attempted 
to evade arrest by flight–also weighs in favor of Phelps.  There is no evidence to 
suggest that Phelps was attempting to ev ade arrest by flight.  Phelps had moved 
forward walking toward the metal cabinet and then the row of blue lockers which 
were near the interior door.  He stated he  wanted to get water.  Although there was 
the exterior door to the parking lot that was open, the door was 20 or 30 feet away 
(behind Holliman and Phelps, with an ar med officer (Dobbs) be tween Phelps and 
that door).  Phelps made no move toward that door.  He lunged at the row of blue 
lockers. 
As to whether Phelps “actively resisted arrest,” the record shows that Phelps 
had been arrested and detained for a couple of hours prior to the “hip toss” maneuver.  
Thus, he was not actively resisting arrest  at the precise moment Holliman applied 
the “hip toss” maneuver. 
Nonetheless, the court recognizes that  when evaluating the third Graham   
factor, the Tenth Circuit has quite sensibly told us to “consider any resistance during 
the suspect’s encounter with officers.”  Wilkins, 33 F.4 th at 1273; see also, Geddes 
v. Weber County, 2022 WL 3371010, at *17 (10th Cir. Aug. 16, 2022) (Bacharach, 
J., dissenting) (adjusting the third Graham factor to “the suspect’s active resistance” 
in an excessive force case where plaintiff was being detained at a correctional facility 
prior to a probable cause hearing and plain tiff alleged jailers us ed excessive force 
against him when he failed to comply with a demand to remove his boots). 
In this case, at the precise moment Holliman applied the “hip toss” maneuver, 
Phelps had reacted physically by lunging his body and head toward the row of blue 
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lockers.  He clearly intended to, and did, hit his head on the blue lockers.  The court, 
however, concludes that viewing the evidence in a light most favorable to Phelps, a 
reasonable jury could conclude that he was not “actively resisting” going to jail with 
Holliman.  Rather, a reasonable jury could conclude that all he  wanted to do was 
injure himself. 
Nonetheless, even if reasonable jury could conclude that Phelps’ conduct 
constituted “active resistance” of going to ja il, that conduct “weighs in favor of the 
use of some force during the period in which [Ph elps] was resisting.”  Perea, 817 
F.3d at 1203 (emphasis in original).  “How ever, the relevant inquiry is whether the 
[“hip toss” maneuver] was reasonable and proportionate given [Phelps’] resistance.”  
Id. 
The court concludes that a reasonable jury could conclude that Phelps’ 
resistance did not justify Holliman’s se vere response.  Ho lliman responded to 
Phelps’ lunge toward the blue lockers to  hit his head by executing a “hip toss” 
maneuver, in which Holliman propelled Phelps’ head to the floor.  Phelps hit the 
wood floor head first.  As Holliman wa s obviously aware when  he executed the 
maneuver, Phelps was unable to protect his head (or any other body part) because 
he was handcuffed with his hands and arms securely re strained behind his back. 6  
Holliman completed the maneuver by moment arily driving Phelps’ head and neck 
to the floor with the point of his right  elbow–backed by the weight of Holliman’s 
upper body. 
It bears repeating that this handling of an unarmed, handcuffed arrestee took 
place in the controlled setting of a police station, with another armed officer (Dobbs) 
a few feet away, and with no other actual or  potential threats in the offing.  To be 
 
6 Thus, unlike the plaintiff in Jordan v. Jenkins, a § 1983 takedown case, Phelps was (as Holliman 
well knew) unable to “st[i]ck out his right arm to catch the ground.”  Jordan, 73 F.4th at 1166. 
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sure, the situation was, for a few seconds , “tense, uncertain and rapidly evolving,” 
Graham, 490 U.S. at 397, but the tension a nd uncertainty were not that of a dark 
night in a rough part of town, with any nu mber of threats lurking in the shadows. 
The Fourth Amendment assuredly does not require a law enforcement officer to stay 
his hand if conditions are not conducive to a fair fight with an arrestee, but the 
required evaluation of the officer’s choice of level of force is necessarily influenced 
by what the evidence shows as to the potential magnitude of the counterforce. 
A jury could reasonably find (i) that Holliman could have regained full control 
of this handcuffed arrestee with the applica tion of a much lower level of force, and 
(ii) that the force used  in the “hip toss” maneuver was not reasonable and 
proportionate to the resistance inherent in Phelps’ lunge away from Holliman and 
toward the blue lockers.  Thus, the third Graham factor weighs against Holliman and 
in favor of Phelps.  See, Perea, 817 F.3d at 1204 (third Graham factor weighs against 
officers where some force would be justifie d to get suspect under officers’ control, 
but repeated use of the taser was not reasonable).    
Because application of all three Grah am factors favor Phelps, the court 
concludes that the “hip toss” maneuver was not objectively reasonable in light of the 
facts and circumstances confronting Holliman, and consequently constituted 
excessive force.  From that it follows that  Phelps was subjected to an unreasonable 
seizure under the Fourth Am endment.  The court theref ore concludes that with 
respect to the “hip toss” maneuver, Phelps  has satisfied his burden under the first 
prong of the qualified immunity test–a reasonable jury could find facts supporting a 
violation of his Fourth Amendment right to be free from the use of excessive force.  
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2.  Whether Holliman violated Phelps’ Fourth Amendment rights by using the 
“leg sweep” maneuver outside the hospital  
a. Severity of the Crime 
The first Graham factor–severity of th e crime at issue–weighs in Phelps’ 
favor.  When Holliman performed the “leg sweep” maneuver against Phelps outside 
the hospital, Phelps was being transported to jail because of municipal charges.  The 
municipal charges were minor offenses.  As such, they only warranted the use of 
“minimal” force. Wilkins, 33 F.4th at 1273. 
b. Threat to Holliman or Others 
The second Graham factor–whether the suspect posed an immediate threat to 
the safety of the officers or others–also weighs in Phelps’ favor.  As stated, “[u]nder 
the second factor, an officer may use incr eased force when a suspect is armed, 
repeatedly ignores police commands, or makes hostile motions towards the officers 
or others.”  Donahue, 948 F.3d at 1196.       
The video surveillance footage shows that  as hospital staff prepared Phelps 
for discharge from the hospital, Phelps wa s again profane and verbally aggressive, 
taunting Holliman (which Holliman, at one point, returned in kind).  Doc. no. 32-16, 
at 1:56; doc. no. 32-21, ECF p. 4, ll. 11-12.     
But the video surveillance footage also  shows Phelps was unarmed and in 
handcuffs.  His arms were securely restrained behind his back.  Although Phelps had 
repeatedly ignored Holliman’s repeated commands of “Go,” at the precise moment 
that Holliman performed the “leg sweep”  maneuver, Phelps was not making any 
verbal threats or aggressi ve moves toward Holliman or  anyone else outside the 
hospital.  The evidence, viewed in Phelps’ favor, does not support that Phelps posed 
an immediate threat to the safety of Holliman or others.                
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c. Actively Resisting or Attempting to Flee 
The third Graham factor–whether Phelps actively resisted arrest or attempted 
to evade arrest by flight–weighs heavily in  favor of Holliman.  The evidence, even 
viewed in Phelps’ favor, shows that as Holliman escorted Phelps, in handcuffs, 
outside the hospital toward his patrol car, Phelps, with more than a little exertion, 
attempted to escape Holliman’s control.  Th is was not the controlled confines of a 
police station, and Holliman had no backup immediately available.  In addition, 
Phelps was actively resisting, with the result that Holliman and Phelps struggled with 
each other on their feet for 12 seconds  before Holliman se ttled the manner by 
executing a “leg sweep” maneuver, taking Ph elps to the pavement on his back.  A 
little over two minutes later, after Phelps was on his feet, it took two men, one on 
each side, to get him to Holliman’s vehicle without further incident. 
 Phelps’ active resistance outside the hos pital clearly “weighs in favor of the 
use of some force during the period in which [Ph elps] was resisting.”  Perea, 817 
F.3d at 1203 (emphasis in original).  Howeve r, as stated, “the relevant inquiry is 
whether the [“leg sweep” maneuver] was reasonable and proportionate given 
[Phelps’] resistance. Id. 
The court concludes that no reasonable jury could conclude that the “leg 
sweep” maneuver was not re asonable and proportionate  given Phelps’ conduct. 7 
Holliman was not able to control Phelps with the use of both his hands or his body.  
As stated, they were not in the confines of a police stati on, and they struggled with 
each other on their feet for 12 seconds be fore Holliman execu ted the “leg sweep” 
 
7 It is quite possible that, as Holliman and Phelps walked across the hospital parking lot toward 
Holliman’s vehicle, Phelps’ motivation to escape was rooted in fear of a recurrence of the level of 
violence Phelps had, a short time  before, experienced at Holliman’ s hands at the police station.  
Plausible though that may be, the court is not aware of any authority for the proposition that when 
an arrestee seeks to escape lawful transport, the permissibility of the level of force applied for the 
purpose of preventing escape depends on the motivation for the attempted escape. 
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maneuver.  The court concludes that the third Graham factor weighs against Phelps 
and in favor of Holliman.    
Although the first and second Graham factors favor Phelps and the use of 
“minimal” force, the court concludes that the third Graham factor weighs heavily in 
Holliman’s favor and allowed the use of “ some” force.  Perea, 817 F.3d at 1203 
(emphasis in original).   The court furt her concludes that no reasonable jury could 
conclude that the “leg sweep” was not  reasonable and proportionate under the 
circumstances. 
The court recognizes that the Tenth Circ uit has said that the second Graham 
factor is “undoubtedly the most impor tant” in determining “the objective 
reasonableness of an officer’s us e of force.”  Wilkins, 33 F.4 th at 1273 (quotation 
marks and citation omitted).  And that factor, along with the first factor, cuts in favor 
of finding that only “minimal” force was to  be used.  However, again, the third 
Graham factor weighs heavily in favor of Holliman, and the “leg sweep” maneuver 
Holliman performed was reasonable and proportionate to Phelps’ conduct.  
Consequently, with respect to the “leg sw eep” maneuver, the c ourt concludes that 
Holliman’s actions were objectively reasonable, and Phelps was not subjected to an 
unreasonable seizure under the Fourth Amendmen t.  It follows that Phelps has not 
satisfied his burden under the first prong of the qualified immunity test–a reasonable 
jury could find facts supporting a violation of his Fourth Amendment right to be free 
of the use of excessive force.  With this finding, the court need not address whether 
Phelps has satisfied his burden under th e second prong of the qualified immunity 
test–the right was clearly established at the time of the constitutional violation.  The 
court concludes that Holliman is entitled to qualified immunity on Phelps’ § 1983 
use of excessive force claim with respect to the “leg sweep” maneuver in the hospital 
parking lot.  Holliman’s motion will be granted as to this claim. 
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3. Whether Phelps’ Fourth Amendment right to be free from use of excessive 
force (the “hip toss” maneuver) was cl early established at the time of the 
incident 
The court, as discussed, concludes that with respect to the “hip toss” maneuver 
in the Dibble Police Department, Phelps has satisfied his burden under the first prong 
of the qualified immunity test–a reason able jury could find facts supporting a 
violation of his Fourth Amendment right to be free from the use of excessive force.  
The court therefore turns to whether Phelps has satisfied his burden under the second 
prong of the qualified immunity test–the right was clearly established at the time of 
the constitutional violation.  The court concludes he has. 
In his briefing, Phelps relies in part upon the Tenth Circuit’s decision in Perea 
v. Baca.  There, the Tenth Circuit specifically stated, “it is–and was [in 2011]–clearly 
established that the use of disproportionate force to arrest an individual who is not 
suspected of committing a serious crime and who poses no threat to others 
constitutes excessive force.”  817 F.3d at 1204.   In Perea, officers were sent to 
perform a welfare check on the plaintiff after he was involved in a verbal fight.  Id. 
at 1201.  They were informed that no wea pons were involved but that the plaintiff 
“suffered from mental illness” a nd “may have been on drugs.”  Id.  When they 
arrived at the home, they were informed the plaintiff “was acting up” and he had 
recently left on his bicycle.  Id.  Thereafter, the officers briefly chased the plaintiff, 
during which the plaintiff violated city traffic ordinances.  The officers “pushed [the 
plaintiff] off his bicycle,” and the plain tiff “struggled and thrashed while holding a 
crucifix.”  Id. at 1201.  After the plaintiff began struggling, one of the officers tased 
the plaintiff, and when that proved ineff ective, he tased him ni ne more times, for a 
total of ten times in less than two minutes.  The Tenth Circuit decided that the three 
Graham factors weighed against the officers’ use of force because (1) the plaintiff’s 
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minor offense “supported the use of minima l force[;]” (2) the plaintiff was not a 
danger “to anyone other than hi mself before they attempted to effect an arrest[;]” 
and (3) while the officers were entitled to use “some force during the period in which 
[the plaintiff] was resisting,” the actual force the officers used was not reasonable 
and proportional.  Id. at 1203 (emphasis in original).  The court concludes that Perea 
puts any reasonable officer in Holiman’s position on notice that force should not be 
used on a non-violent or non-threatening suspect unless that suspect is actively 
resisting, and even then, the force used s hould be no more than is necessary to get 
the suspect under the officer’s control. 
Phelps also cites the Tenth Circuit’ s decision in McCoy v. Meyers, 887 F.3d 
1034, 1052 (10 th Cir. 2018), wherein the appellate court stated that it was “clearly 
establish[ed] that the Fourth Amendmen t prohibits the use of force without 
legitimate justification, as when a suspect poses no threat or has been subdued.”  In 
so stating, the Tenth Circuit relied upon it s decisions in Dixon v. Richer, 922 F.2d 
1456 (10th Cir. 1991); Casey v. City of Fe deral Heights, 50 9 F.3d 1278 (10 th Cir. 
2007); and Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008).  See, McCoy, 887 F.3d 
at 1052.     
The court takes its cue from a common- sense application of Graham v. 
Connor and the Tenth Circuit’s excessive force cases, cited above, as well as Morris 
v. Noe, also cited in Phelps’ brief, all of which were decided before the events before 
the court in this case occurred.  The court refers here to common sense because, as 
might be expected, no one case presents the same constellation of facts supporting 
or undermining the claim of excessive force,  or, relatedly, the claim of immunity.  
In Morris, a § 1983 takedown case in wh ich denial of qualified immunity was 
affirmed, the Tenth Circuit (noting that it had found no cases addressing “a forceful 
takedown that by itself caused serious injury,” 672 F.3d at 1197) recognized that: 
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Because the existence of excessive force is a fact-specific inquiry, 
however, there will almost never be a previously published opinion 
involving exactly the same circumst ances.  Thus, we have adopted a 
sliding scale: The more obviously egregious the conduct in light of 
prevailing constitutional principles, the less specificity is required from 
prior case law to clearly establish the violation. 
 
Id. at 1196 (quotation marks and citation omitted); accord, Perea, 817 F.3d at 
1204. 
 
In any given case, some of the recognized factors will, as a matter of common 
sense, be more prominent than others.  Fo r instance, in Graham v. Connor, as well 
as in Tenth Circuit cases de cided before the events in this case took place, it was 
made clear that the presence of an “immediate threat” (and the level of that threat) 
to officer safety is a potentially decisive  factor.  Graham, 490 U.S. at 396; Morris, 
672 F.3d at 1196.  In the case at bar, not only did Phelps not pose an immediate 
threat to Holliman as they moved toward the door, the converse was true:  Phelps 
was essentially defenseless to a maneuver intended to forcefully propel his head to 
the floor of the station.  To determine whether “obvious[] egregious[ness],” Morris, 
672 F.3d at 1197, should influe nce the court’s analysis of Holliman’s claim of 
immunity, the court looks to the “totality  of the circumstances,” Graham, 490 U.S. 
at 396.  These circumstances–including Holliman’s conscious decision as to the level 
of force needed to regain control of a handcuffed man within the controlled setting 
of a police station–move the needle toward the egregious end of the scale.  In the 
absence of a white horse case, a bay horse case will do.  See, Lowe, 864 F.3d at 1210 
(“When the public official’s conduct is eg regious, even a general precedent would 
apply with obvious clarity.”). 
In sum, the court concludes that Phelps has satisfied his burden on the second 
prong of the qualified immunity test–the right was clearly established at the time of 
the constitutional violation.  Because Phelps has satisfied his burden on the first and 
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second prongs of the qualified immunity test , the court concludes that Holliman is 
not entitled to summary judgment with resp ect to Phelps’ § 1983 use of excessive 
force claim based on the “hip toss” maneuver in the Dibble Police Department.  
Retaliation Claim–First Amendment 
1. Whether Holliman violated Phelps’ First Amendment rights by using the 
“leg sweep” outside the hospital  
 To establish a First Amendment retaliati on claim, a plaintiff must show that 
(1) “he engaged in activity the First Amendment protects;” (2) “[Holliman’s] actions 
injured him in a way that would ‘chill a person of ordinary firmness from continuing 
to engage in that activity’;” and (3) “his  protected activity substantially motivated 
[Holliman’s] responsive acti ons.”  Frey v. Town of Jackson, Wyoming, 41 F.4 th 
1223, 1232 (10th Cir. 2022) (quoting Nielander v.  Bd. of Cnty. Comm’rs, 582 F.3d 
1155, 1165 (10th Cir. 2009)).  Upon review, the court concludes that Phelps has failed 
to proffer evidence sufficient to enable a reasonable jury to find in his favor as to the 
first and third elements.  In light of this finding, the court need not address whether 
Phelps has proffered evidence sufficient to satisfy the demands of the second 
element.      
With respect to the first element, the c ourt agrees with Phelps that “the First 
Amendment protects the right to critic ize the police[.]”  Jordan, 73 F.4 th at 1169.  
However, “the right to criticiz e police has important limits.”  Id. at 1170.  “[I]f 
criticism is accompanied by a physical act which interferes with an officer’s official 
duties, then the officer may take measures to stop that physical act.”  Id.  (citation 
omitted).  In the case at bar, although the evidence, viewed in Phelps’ favor, reveals 
that Phelps was–to put it mildly– critical of Holliman’s conduct toward Phelps in the 
DPD, the evidence, as previously discu ssed, reveals that at the time Holliman 
performed the “leg sweep” maneuver, Ph elps was trying to escape Holliman’s 
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control and was actively resisting going with Holliman to his police vehicle and then 
to jail.  And as the court has already determined, the measure that Holliman took to 
regain control of Phelps was reasonable and proportionate to Phelps’ conduct.  The 
court thus concludes that Phelps’ cr iticism fell outside the bounds of First 
Amendment protection due to his physical  acts constituting active resistance and 
attempts to escape control. 
As to the third element, the court also concludes that even if Phelps engaged 
in protected activity, the ev idence, viewed in Phelps’ favor, does not support the 
proposition that the protected activity substantially motivated Holliman’s actions.  A 
reasonable jury could not find that Ho lliman’s actions were based on Phelps’ 
criticism itself, rather, it was based upon Phelps’ conduct in attempting to escape 
Holliman’s control–actively resisting going with Holliman to the patrol car and then 
to the jail.  Holliman and Phelps struggled  with each other on their feet for 12 
seconds before Holliman executed the “leg sweep” maneuver. 
In sum, the court concludes that Phelps has failed to satisfy his burden on the 
first prong of the qualified immunity test –that a reasonable jury could find facts 
supporting a violation of his First Amen dment right to be free from retaliatory 
conduct (use of the “leg sweep” maneuver) for protected activity.   
2. Whether Phelps’ First Amendment right to be free from retaliatory conduct 
(use of the “leg sweep” maneuver) fo r protected activity was a clearly 
established right 
Even if Phelps were able to establish all the elements of his First Amendment 
retaliation claim, and thus, a constitutional violation, the court concludes that Phelps 
is unable to establish that the constituti onal violation was clearly established in 
March, 2022. 
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In Hoskins v. Withers, 92 F.4 th 1279 (10 th Cir. 2024), the Tenth Circuit, 
relying on its decision in Frey, stated that there was an “absence of any case law that 
would clearly establish a First Amendmen t violation from the retaliatory use of 
force” as of November 2018.  Id. at 1294.  Phelps has not cited any decision that 
would show that as of March 2022, there was precedent finding a First Amendment 
violation when an officer uses force to retaliate for protected speech.  “[B]ased on 
the absence of a clearly established protection against a retaliatory use of force,” id. 
at 1294, the court concludes that Phelps has failed to carry his burden on the second 
prong of the qualified immunity test.  Th is conclusion arguably seems a bit harsh, 
especially considering the fact that the court has given Phelps the benefit of a sliding 
scale approach with respect to the takedown at the Dibble police station.  But Judge 
Bacharach’s opinion for the unanimous Tenth Circuit panel in Hoskins is very plain 
spoken on this issue.  He repeated, in a f ootnote, the holding that binds this court:  
There is “no clearly established protection against a retaliatory use of force.”  Id. at 
1294 n. 14. 
* * * * 
Because Phelps has failed to satisfy his burden on both prongs of the qualified 
immunity test, the court concludes that  Holliman is entitled to summary judgment 
on Phelps’ First Amendment retaliation claim. 
State Law Negligence Claim    
 The Town seeks summary judgment on Phelps’ negligence claim under 
Oklahoma law based on Holliman’s use of excessive force.  In its motion, the Town 
argues that Phelps has “failed to demons trate that Officer Holliman breached any 
legal duty to Plaintiff or that he was injured by such breach.”  Doc. no. 33, ECF pp. 
6-7.  However, the court has concluded that the “hip  toss” maneuver utilized by 
Holliman was objectively unreasonable.  Consequently, the court rejects the Town’s 
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argument that Phelps has failed to demo nstrate that Holliman breached any legal 
duty to him.  Further, based on the reco rd evidence, viewed in Phelps’ favor, the 
court rejects the Town’s argument that Phelps has failed to demonstrate that he was 
injured by such breach. 
 In its motion, the Town also argues th at “there is simply no evidence that 
Officer Holliman acted maliciously or ou tside the scope of his employment with 
regard to Plaintiff.”  Doc. no. 33, EC F p. 6.  However,  under the Oklahoma 
Governmental Tort Claims Act (Act), a political subdivision, like a municipality, 
“shall be liable for loss resulting from . . . the torts of its employees acting within the 
scope of their employment subject to the limitations and exceptions specified in the” 
Act.  51 O.S. § 153 (emphasis added); see also, Tuffy’s, Inc. v. City of Oklahoma 
City, 212 P.3d 1158, 1167 (Okla. 2009) (“[A] m unicipality is liable for the tortious 
acts of police officers committed within the scope of employment as defined by the 
[Act].  Such tortious acts include abuses  of lawful power by police officers.    
Whether a police officer’s actions were take n within the scope of employment is a 
jury question unless only one  reasonable conclusion can be drawn from the facts 
alleged.)”.  Thus, it is of  no consequence that there is no evidence that Holliman 
acted maliciously or outside the scope of his employment.      
In sum, the court concludes that the Town is not entitled to summary judgment 
on Phelps’ negligence claim.            
IV. 
Conclusion 
 For the reasons stated, Defendant John Daniel Holliman’s Motion for 
Summary Judgment (doc. no. 32) is GRANTED in part  and DENIED in part .   
Holliman’s motion is GRANTED with respect to plaintiff Craig Allen Phelps’ 42 
U.S.C. § 1983 use of excessive force clai m based upon the use of a “leg sweep” 
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maneuver outside the Norman Regional Hosp ital and with respect to his 42 U.S.C. 
§ 1983 retaliation claim, and it is DENIED with respect to his 42 U.S.C. § 1983 use 
of excessive force claim based on the “h ip toss” maneuver in the Dibble Police 
Department.  Defendant Town of Dibble’s Motion for Summary Judgment (doc. no. 
33) with respect to plaintiff Craig Allen Phelps’ negligence claim is DENIED.    
 IT IS SO ORDERED this 27 th day of January, 2025.         
 
  
  
 
 
 
 
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