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McNeil v. Andy Slack Wrecker Service

United States District Court, W.D. Oklahoma

December 4, 2019

DELBERT McNEIL, JR., Plaintiff,
v.
ANDY SLACK WRECKER SERVICE, et al., Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         Delbert McNeil, Jr. (Plaintiff), a state court pretrial detainee appearing pro se, [1] seeks relief under 42 U.S.C § 1983. See Doc. 14.[2] United States District Judge Stephen P. Friot has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 5. After initial review, the undersigned recommends the dismissal of this action, without prejudice, for lack of subject-matter jurisdiction.

         I. Subject-matter jurisdiction.

         “Federal courts have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party, and thus a court may sua sponte raise the question of whether there is subject matter jurisdiction at any stage in the litigation.” 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (internal quotation marks omitted); see Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

         II. Plaintiff's second amended complaint. [3]

         A. The Defendant.

         In the caption of his now-operative complaint, [4] Plaintiff lists “Andy Slack Wrecker Service” as the single Defendant. Doc. 14, at 1. But where then prompted in the form complaint to “[s]tate information about . . . each person or company listed as a defendant in the caption, ” Plaintiff names “Andy Slack, owner, Slack Wrecker Service” as the Defendant. Id. at 5.[5] Similarly, in the first of his two claims for relief, Plaintiff alleges that “Andy Slack Wrecker Service” violated the Fourteenth Amendment. Id. at 6. Where directed, however, “to specify each person or entity that is a defendant for this particular claim, ” Plaintiff states, “Andy Slack had soly committed this act.” Id. “Andy Slack” is also the only Defendant that Plaintiff names in his second claim for relief from damage allegedly caused by a breach of duty under Oklahoma law. Id. at 7.

         Because Plaintiff does not effectively distinguish his claims among “Andy Slack, ” “Andy Slack Wrecker Service” and “Andy Slack, owner, Slack Wrecker Service, ” id. at 1, 5-8, and because it is irrelevant to the recommended disposition of this matter, the undersigned generally refers to the named Defendant as “Defendant Slack.”

         B. Plaintiff's claims.

         1. Claim I.

         Plaintiff first alleges that Defendant Slack “violated the 14 Amendment . . . under the color of the law . . . by not enforcing due process before relinquishing or rendering [Plaintiff's] property to a person who had not properly produced documentation or showed ownership to property (keys)[.]” Id. at 6.

         As factual support for this claim, Plaintiff contends that “[o]n September 19, 2018 [his] vehicle was towed by [Defendant Slack]”; that the “Pauls Valley Sherriff department contract with that company”; that the “vehicle was impounded and stored at the property of [Defendant Slack]”; “and that's where Plaintiff's property was taken from.” Id. at 7.

         2. Claim II.

         Here, Plaintiff contends “[Defendant Slack] breached his duty to up hold the State of Oklahoma proceedure law that governs ...


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