United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Duke Kalbaugh (Plaintiff) filed this 42 U.S.C. § 1983
action on November 17, 2016, naming two Oklahoma City police
officers, Defendants Jones and Wright in both their
individual and official capacities, and alleging they
subjected him to “excessive use of force and assault
and battery” when taking him into custody on November
25, 2014, nearly two years earlier. Doc. 1, at
States District Judge David L. Russell referred the matter to
the undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4.
Following initial screening of Plaintiff's complaint, the
undersigned entered a report explaining that
“‘[s]uing individual defendants in their official
capacities under § 1983 . . . is essentially another way
of pleading an action against the county or municipality they
represent.' Porro v. Barnes, 624 F.3d 1322, 1328
(10th Cir. 2010) (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978)).” Doc. 11,
at 4. The undersigned further reported that “[i]n order
to sufficiently allege such a claim, Plaintiff must
effectively describe ‘official policy or custom [that]
was both deliberately indifferent to his constitutional
rights and the moving force behind his injury.'”
Id. (quoting Porro, 624 F.3d at 1328). The
undersigned concluded that “[b]ecause Plaintiff has not
done so here, he fails to adequately state a claim upon which
relief can be granted against Defendant Jones and Wright in
their official capacities, ” id., and
recommended the dismissal without prejudice of
Plaintiff's claims against Defendants Jones and Wright in
their official capacities. Id. at 4, 5. Judge
Russell adopted that recommendation and granted Plaintiff
“leave to file an amended complaint to set forth
additional facts and claims, should he desire.” Doc.
15, at 2.
Plaintiff did so on January 12, 2017, Doc. 18, Judge Russell
once again dismissed Plaintiff's claims against
Defendants Jones and Wright in their official capacities,
Doc. 48, finding that “[t]he allegation in the Amended
Complaint that ‘[b]oth officers were on official duties
and acting in both official and individual capacity for the
Oklahoma City Police Department' is insufficient to meet
his obligation of pleading a policy or custom.”
Id. at 4 (quoting Doc. 18, at 11).
Plaintiff's motion to file a second amended
motion filed on December 22, 2017 “per F.R.C.P. Rule
15(a), 15(c), 15(d) and 19(a), ” Plaintiff requests
“leave to amend/supplement the record of civil
complaint by the addition of Defendants.” Doc. 81, at
1. Specifically, Plaintiff seeks leave to add Defendants
Jones and Wright in their official capacities. Id. at
4. He also seeks to add, individually and officially, both
“Mustang Oklahoma police officer William Carpenter . .
. who was a police officer when the event's took place
giving rise to this civil rights complaint” and
“Kevin Lee Deon . . . who was a national guardsman when
the events took place giving rise to this civil rights
complaint . . . .” Id. at 5. Plaintiff
“asks leave to amend/supplement the record in
accordance to information gained from the special report Doc.
No. 30 and discovery.” Id. at 6. Attached to
Plaintiff's motion is his Amended Pro-Se Prisoners Civil
Rights Complaint, id. Att. 1, along with various
exhibits. Id. Atts. 2-18.
Jones and Wright object to Plaintiff's motion to add
claims against them in their official capacity. Doc. 82. They
submit that “[w]hile Plaintiff has repeatedly objected
to dismissal of the official capacity claims, he has never
identified an official policy or custom that was the cause of
the alleged violations of constitutional rights.”
Id. at 2. They also oppose the addition of William
Carpenter and Kevin Deon as Defendants on statute of
limitations and futility grounds and generally object to the
timing of Plaintiff's motion. Id. at 2-3.
did not file a reply to Defendants Jones and Wright's
response in opposition to his motion to amend and supplement
his complaint. See Local Civil Rule (LCvR) 7.1(i)
(“[A] reply to new matter raised in the response may be
filed within 7 days after the date the response was
filed.”). Nonetheless, on January 10, 2018,
Plaintiff filed an “objection” to Defendants'
response brief. Doc. 86. The undersigned has considered
Plaintiff's “objection” on this single
occasion only and has done so in the interests of judicial
expediency. The undersigned cautions Plaintiff that although
he is appearing pro se, “he nevertheless must follow
the same rules of procedure that govern other
litigants.” Green v. Dorrell, 969 F.2d 915,
917 (10th Cir. 1992). Hereafter, the undersigned will not
consider and will summarily strike any filing that is not
consistent with the motion practice established by the
Federal Rules of Civil Procedure or this Court's Local
a careful review of Plaintiff's motion, of his proposed
amended complaint, of his objection to Defendants'
response, and of the procedural rules governing amended and
supplemental pleadings in this Court, the undersigned
recommends that Judge Russell deny Plaintiff's Motion for
Leave to Amend/Supplement the Record of Civil Complaint by
the Addition of Defendants. Doc. 81.
Plaintiff's pro se status.
is appearing pro se, so the undersigned liberally construes
his pleadings and papers and holds them to a less stringent
standard than those drafted by a lawyer. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing
Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam)). Nonetheless, a court may not serve as
Plaintiff's advocate, creating arguments on his behalf.
See generally Yang v. Archuleta, 525 F.3d 925, 927
n.1 (10th Cir. 2008).