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Kalbaugh v. Oklahoma City Police Department

United States District Court, W.D. Oklahoma

January 12, 2018

WAYNE DUKE KALBAUGH, Plaintiff,
v.
OKLAHOMA CITY POLICE DEPARTMENT; JACOB JONES, Police Officer, individual capacity; BRYAN WRIGHT, Police Officer, individual capacity, Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE

         I. Relevant history.

         Wayne 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 10.[1]

         United 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.

         After 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).

         II. Plaintiff's motion to file a second amended complaint.

         Now, by 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.[2] 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.

         Defendants 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.

         Plaintiff 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.”).[3] 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 Civil Rules.[4]

         Following 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.

         III. Analysis.

         A. Plaintiff's pro se status.

         Plaintiff 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).

         B. ...


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