David v. Crow et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JEROME ADRIAN DAVID, )
)
Plaintiff, )
)
v. ) Case No. CIV-21-534-SLP
)
SCOTT CROW, et al., )
)
Defendants. )
O R D E R
Before the Court is the Fourth Supplemental Report and Recommendation [Doc.
No. 119] (R.&R.), issued by United States Magistrate Judge Gary M. Purcell pursuant to
28 U.S.C. § 636(b)(1)(B) and (C). Plaintiff, a state prisoner appearing pro se, seeks civil
rights relief, alleging violations of his federal constitutional rights under 42 U.S.C. § 1983.
The Magistrate Judge has recommended denial of Plaintiff’s Motion for Leave to Amend
[Doc. No. 116].
Plaintiff has filed an Objection [Doc. No. 124] to the R.&R. Accordingly, the Court
must make a de novo determination of those issues specifically raised by the Objection,
and may accept, modify, or reject the recommended decision. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3).
Also pending before the Court are: (1) Plaintiff’s Motion for Relief from a Judgment
or Order [Doc. No. 142]; and (2) Plaintiff’s Motion for the Court to Take Judicial Notice
[Doc. No. 171], filed subsequent to the Objection. For the reasons that follow, the Court
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ADOPTS the Fourth Supplemental Report and Recommendation and DENIES Plaintiff’s
Motion for Leave to Amend. The Court further DENIES Plaintiff’s Motions.
I. Background
Plaintiff commenced this action on May 21, 2021. Compl. [Doc. No. 1]. Plaintiff’s
Second Amended Complaint [Doc. No. 23, 23-1, 23-2 and 23-3]], the operative complaint
filed on August 10, 2021, raises claims arising from his incarceration at William S. Key
Correctional Center (WSKCC) located in Fort Supply, Oklahoma. Plaintiff was housed
there at the time he commenced this action.
The Second Amended Complaint alleges three claims for § 1983 relief and names a
total of fourteen defendants. Claim 1 alleges violations of Plaintiff’s Eighth Amendment
rights. He brings this claim against the following Defendants: P. Elsi; Glover; Prather;
Aitson; T. Lauer; Tammy Foster; Cheri Atkinson; Joe M. Allbaugh; T. Hastings Siegfried;
Scott Crow, Linda Eike, and Susan Goodwin. He alleges his Eighth Amendment rights
were violated based on unsanitary operations of the kitchen and delay and denial of dental
care to include an unconstitutional policy for providing dental care.
Claim 2 alleges violations of Plaintiff’s First and Fourteenth Amendment rights.
Plaintiff alleges he was fired from his job as an orderly in retaliation for utilizing the prison
grievance system. He also challenges a policy of the Oklahoma Department of Corrections
(ODOC) regarding the processing of chicken. He brings this claim against the following
Defendants: Linda Eike; Susan Goodwin; Lonnie Lawson; and Joe M. Allbaugh.
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Claim 3 alleges violations of Plaintiff’s Fourteenth Amendment rights. He brings
this claim against the following Defendants: Scott Crow; Mark Knutson and Lonnie
Lawson.
In total, Plaintiff names fourteen Defendants in the Second Amended Complaint.
Of those fourteen Defendants, the Court has previously dismissed Defendants T. Lauer,
see Order [Doc. No. 156] and Joe M. Allbaugh, see Order [Doc. No. 114]. Eight of the
remaining twelve Defendants were employees at WSKCC during the time period relevant
to Plaintiff’s claims: Defendants Elsi, Glover, Prather, Aitson, Foster, Eike, Goodwin and
Lawson. The remaining four Defendants were employees of the Oklahoma Department of
Corrections (ODOC) during the relevant time period: Crow, Atkinson, Siegfried and
Knutson.
The record shows that Plaintiff was transferred to Howard McLeod Correctional
Center (HMCC) in July 2021. See Notice of Change of Address [Doc. No. 15]. He was
then transferred to Jackie Brannon Correctional Center (JBCC) in March 2022. See Notice
of Change of Address [Doc. No. 52]. He remained at JBCC until approximately November
2022. See Notice of Change of Address [Doc. No. 132]. At the time Plaintiff filed the
pending Motion (in August 2022) seeking leave to file a Third Amended Complaint, he
continued to be housed at JBCC. Plaintiff was subsequently housed at Great Plains
Correctional Center. See Notice of Change of Address [Doc. No. 161]. Most recently, the
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record reflects Plaintiff is housed at Northeast Oklahoma Correctional Center in Vinita,
Oklahoma. See Notice of Change of Address [Doc. No. 176].1
II. Discussion
A. Plaintiff’s Motion for Leave to Amend
As the Magistrate Judge addressed, Plaintiff seeks leave to amend to name eighteen
additional defendants, the vast majority of whom are staff at JBCC. Plaintiff further seeks
leave to amend to add claims arising from events alleged to have occurred during his
incarceration at JBCC.2 The Magistrate Judge, relying on Rules 15, 18 and 20 of the
Federal Rules of Civil Procedure, recommended denying leave to amend. The Magistrate
Judge found that the new claims and/or defendants would not be sufficiently connected to
Defendant’s initial claims (arising from his incarceration at WSKCC) by a common
occurrence or question of fact or law. Further, the Magistrate Judge found that “[t]o permit
Plaintiff to proceed in this single action on unrelated claims against different defendants
that should be litigated in separate action(s) would allow him to avoid paying the filing
fees required for separate actions, and could also allow him to circumvent the three strikes
provision for any new and unrelated claims that might be found to be a “strike” under 28
U.S.C. § 1915(g).” R.&R. at 4.
1 Plaintiff has been housed at additional institutions in the interim. See Notices of Change of
Address [Doc. Nos. 172, 175].
2 Notably, in his Objection, Plaintiff identifies even more potential defendants whom he has not
named in his proposed Third Amended Complaint. See Obj. at 2.
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In his Objection, Plaintiff does not address any new claim or new defendant. Nor
does he address any specific finding of the Magistrate Judge. Instead, in conclusory
fashion, he references his claim raised in the Second Amended Complaint against
Defendant Siegfried.3 Plaintiff alleges Defendant Siegfried is a policymaker for ODOC
and that he discovered the names of several other policymakers when he was transferred
to JBCC. Although Plaintiff identifies additional persons as “policymakers” in his
Objection, see Obj. at 2, none of those additional persons are included in his Motion or
proposed Third Amended Complaint.
The Court deems any request for leave to amend to add any of the persons identified
for the first time in the Objection has been waived. See Marshall v. Chater, 75 F.3d 1421,
1426-27 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate
judge’s recommendation are deemed waived”.) Moreover, Plaintiff fails to elaborate as to
the nature of the claims against these policymakers. Instead, Plaintiff states in wholly
conclusory fashion that “all his claims are related and transactions or occurrences from the
original and Second Amended Complaint.” Obj. at 4.
Moreover, the Court finds, based on the conclusory nature of Plaintiff’s Objection,
that he has waived any objection to the Magistrate Judge’s findings. See, e.g., Schupper v.
Cafasso, 708 F. App’x 943, 946 (10th Cir. 2017) (generalized objections to a magistrate
judge’s findings and recommendations are insufficient) (citing United States v. 2121 E.
3 Plaintiff’s claims against Defendant Siegfried as raised in the Second Amended Complaint appear
to relate to an alleged unconstitutional dental policy. See, e.g., Second Am. Compl., Attachment
3 [Doc. No. 23-3] at 6-7.
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30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (holding that a party’s objections to a
magistrate judge's recommendation “must be both timely and specific to preserve an issue
for . . . appellate review,” and the litigant’s two-sentence, generalized objection, asking
only that the district court “reconsider” the recommendation, was insufficient).
Alternatively, the Court wholly concurs with the Magistrate Judge’s conclusions regarding
the proposed Third Amended Complaint. As set forth, those claims relate to events
occurring at JBCC and the majority of the proposed new defendants are employees at
JBCC. Those matters are clearly unrelated to the claims against the defendants named in
the Second Amended Complaint and arising from his incarceration at WSKCC.
As to any remaining Defendants, Plaintiff fails to adequately address the claims
against those Defendants in his Objection. Plaintiff’s vague reference to their status as
“policymakers” is insufficient. Nor has Plaintiff demonstrated he did not unduly delay in
bringing claims against them. Although he contends names of certain proposed defendants
were “wrongfully concealed” from him, he fails to provide any factual support for such
contentions. For all these reasons, the Court adopts the Fourth Supplemental Report and
Recommendation and denies Plaintiff leave to amend to file a Third Amended Complaint.
B. Plaintiff’s Additional Motions
1. Motion for Relief from a Judgment or Order [Doc. No. 142]
In support of this Motion, Plaintiff first references his Motion for Leave to Amend
Complaint [Doc. No. 72] filed May 26, 2022. This Motion was stricken due to Plaintiff’s
failure to comply with LCvR 15.1 (requiring a party moving to amend a complaint to attach
the proposed pleading as an exhibit to the motion). See Enter Order [Doc. No. 74]. He
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states that he then filed another Motion for Leave to Amend. He appears to reference the
Motion addressed by the Magistrate Judge in the Fourth Supplemental Report and
Recommendation adopted herein. Plaintiff argues that he “just came into light of the
knowledge [/] understanding of Fed. R. Civ. P. 15(d)” and that he intended to file a motion
to supplement under Rule 15(d) of the Federal Rules of Civil Procedure. He asks the Court
to correct his Motion. Plaintiff’s request is denied. Plaintiff did not raise this issue in his
objection to the Report and Recommendation and has waived the argument. Moreover, the
Motion is wholly vague and conclusory.
2. Motion for the Court to Take Judicial Notice [Doc. No. 171]
In this Motion [Doc. No. 171], Plaintiff again references his Motion for Leave
Motion to Amend/Correct Complaint [Doc. No. 72] which was stricken by the Court for
failure to comply with LCvR 15.1 (requiring a party moving to amend a complaint to attach
the proposed pleading as an exhibit to the motion). See Enter Order [Doc. No. 74]. Plaintiff
also references the subsequently filed Motion for Leave to Amend Complaint [Doc. No.
116] which, as discussed above, the Court has denied. Plaintiff asks the Court “to take
judicial notice of the fact that several pages from the Proposed Amended Complaint are
missing” as well as exhibits. Mot. at 3. He claims he discovered this “[o]n July 7, 2023”
when he “received a copy of this Proposed Amended Complaint (Doc. No. 116-1) from the
Clerk of Court” and none of the exhibits were included. Id.
Plaintiff fails to explain why he did not discover this until July 7, 2023. The record
shows he filed his Motion to Amend/Correct Complaint approximately one year prior, on
August 26, 2022. The Fourth Supplemental Report and Recommendation was filed on
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August 30, 2022 and his Objection was filed on September 23, 2022. Moreover, Plaintiff
fails to explain how or why the omitted pages and missing exhibits would impact the
recommendation of the Magistrate Judge to deny Plaintiff leave to amend. For these
reasons, Plaintiff’s Motion for the Court to Take Judicial Notice is denied.
III. Conclusion
IT IS THEREFORE ORDERED that the Fourth Supplemental Report and
Recommendation [Doc. No. 119] is ADOPTED in its entirety and Plaintiff’s Motion for
Leave to Amend [Doc. No. 116] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Relief from a Judgment or
Order [Doc. No. 142] and Motion for the Court to Take Judicial Notice [Doc. No. 171] are
DENIED.
IT IS SO ORDERED this 19th day of July, 2024.
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