United States District Court, W.D. Oklahoma
L. PALK UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation [Doc. No. 52] of
United States Magistrate Judge Shon T. Erwin recommending
that the Motion to Dismiss of Defendant John Whetsel [Doc.
No. 35] be granted in part and denied in part. Both Defendant
Whetsel and Plaintiff have filed timely objections to the
Report and Recommendation. See Def. Whetsel's
Obj. [Doc. No. 56] and Pl.'s Obj. [Doc. No. 57].
times relevant to the claims alleged, Plaintiff was a
pretrial detainee housed at the Oklahoma County Detention
Center (OCDC). On October 28, 2015 another inmate, Demetrius
Stamps (Stamps), stabbed Plaintiff in the lower right back
and the lower right leg. Plaintiff required medical treatment
as a result.
time of the incident, Defendant Whetsel served as the Sheriff
of Oklahoma County. Plaintiff brings a claim against
Defendant Whetsel in his individual capacity pursuant to 42
U.S.C. § 1983. Plaintiff alleges Defendant Whetsel failed
to protect him from being attacked and stabbed by Stamps.
Plaintiff further alleges Defendant Whetsel failed to correct
deficiencies at the OCDC that were well-known to him prior to
the attack, including a failure to properly train Defendant
Scott, the officer who witnessed the attack. And Plaintiff
brings a claim under Oklahoma state law against Defendant
Whetsel alleging intentional infliction of emotional
Judge Erwin recommended that Defendant Whetsel's Motion
to Dismiss be denied as to Plaintiff's § 1983 claim
and further recommended that Defendant Whetsel's Motion
to Dismiss be granted as to Plaintiff's state law claim
for intentional infliction of emotional distress.
Objections Raised by the Parties
objection, Defendant Whetsel contends that Plaintiff's
individual capacity claim is “predicated on a
supervisory liability theory” and that Plaintiff
“does not challenge a specific policy promulgated,
implemented, [or] created by Defendant Whetsel that caused a
constitutional harm.” Def.'s Obj. at 1. Instead,
Defendant argues that Plaintiff impermissibly relies solely
upon a “stale” report of the Department of
Justice (DOJ) issued in 2008 and a subsequent Memorandum of
Understanding (MOU) entered in 2009 to establish the alleged
unconstitutional conditions referenced in the report
continued to exist at the OCDC in 2015 when the conduct
giving rise to Plaintiff's § 1983 claim is alleged
to have occurred. Id. at 1-2. Defendant argues
Plaintiff's references to the DOJ report and MOU in the
Third Amended Complaint [Doc. No. 30] are too vague and
conclusory to state a plausible claim for relief against
objects to Magistrate Judge Erwin's finding that his
state law claim against Defendant Whetsel for intentional
infliction of emotional distress is untimely. Although
Plaintiff concedes he did not timely file his claim within
the applicable one-year limitations period, he urges the
Court to find equitable tolling of the limitations period is
parties' objections to the Report and Recommendation
trigger de novo review by this Court of the proposed findings
or recommendations to which an objection has been made. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2).
pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Dismissal of the
complaint is proper if the plaintiff fails to plead
allegations sufficient “to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Fed.R.Civ.P.
reviewing the sufficiency of the allegations, the Court
“accept[s] as true all well-pleaded factual allegations
in the complaint and view[s] them in the light most favorable
to the plaintiff.” SEC v. Shields, 744 F.3d
633, 640 (10th Cir. 2014) (quotations and citation omitted).
A plaintiff must set forth specific factual allegations to
support each claim, i.e., “mere labels and conclusions
and a formulaic recitation of the elements of a cause of
action will not suffice.” Safe Streets All. v.
Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017)
(quotations and citation omitted). A claim has facial
plausibility when the plaintiff had “pled factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (quotations and citations
Court liberally construes the allegations of a pro se
litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). But “this rule of liberal construction
stops . . . at the point at which [the court] begin[s] to
serve as his advocate.” United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
Plausibility of Plaintiff's § 1983 Claim Against
Defendant Whetsel in his Individual Capacity
Third Amended Complaint makes several references to
“Defendants, ” collectively, but only
specifically references Defendant Whetsel only three times.