Heddlesten v. Van Dyck et al

Filing 91

ORDER ADOPTING 85 Report and Recommendation, GRANTING 27 Motion to Dismiss filed by Nita Newport, GRANTING 44 Motion to Dismiss filed by Scott Biggs, Danny Sanders, Tess Brown, David Stevens, Bret T Burns, Richard G Van Dyck, DENYING [6 0] Motion for Summary Judgment filed by Kenneth R Heddlesten, DENYING 89 Motion for Extension of Time filed by Kenneth R Heddlesten. Plf's individual capacity claims against dfts Van Dyck, Stephens, Biggs & Burns are dismissed w/prejudice o n grounds of absolute immunity. Plf's individual capacity claims against dfts Newport & Sanders in Count I are dismissed w/o prejudice under Rooker-Feldman, Preiser & Heck, & plf's individual capacity claim against dft Newport in Count II is dismissed w/prejudice as untimely. Plf's unspecified claim against dft Brown is dismissed w/o prejudice & w/o leave to amend. Plf's official capacity claims against dfts Van Dyck, Stephens, Biggs, Burns, Brown, Sanders & Newport are dis missed w/o prejudice under the Eleventh Amendment. To the extent plf seeks relief on behalf of his wife, such claims are dismissed w/o prejudice for lack of standing. The dismissal of this action counts as a strike for purposes of 28 USC § 1915(g). Signed by Honorable Stephen P. Friot on 12/20/12. (llg) Modified on 12/20/2012 (llg).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

KENNETH R. HEDDLESTEN,
Plaintiff,
-vsJUDGE RICHARD G. VAN DYCK,
et al.,
Defendants.

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Case No. CIV-11-1352-F

ORDER
On November 30, 2012, United States Magistrate Judge Shon T. Erwin issued
a Report and Recommendation, wherein he recommended that defendants’ motions
to dismiss be granted and plaintiff’s motion for summary judgment be denied.
Magistrate Judge Erwin also recommended that to the extent plaintiff seeks relief on
behalf of his wife, those claims should be dismissed without prejudice for lack of
standing. Further, Magistrate Judge Erwin recommended that any order adopting the
Report and Recommendation should include the assignment of a strike to plaintiff for
purposes of 28 U.S.C. § 1915(g).
Presently before the court is plaintiff’s timely objection to the Report and
Recommendation. In accordance with 28 U.S.C. § 636(b)(1), the court has conducted
a de novo review of the matter. Having done so, the court concurs with the analysis
and recommendation of Magistrate Judge Erwin. The court adopts the Report and
Recommendation in its entirety.
Contemporaneous with his objection, plaintiff has submitted a request to file
a first amended complaint. Although the court is mindful that leave to amend should

be freely given “when justice so requires,” see, Rule 15(a)(2), Fed. R. Civ. P., the
court finds that plaintiff has failed to present any basis for the court to grant such
leave. There is no statement in the request as to how plaintiff intends to amend his
complaint or how any amendment would cure the deficiencies of his complaint against
defendants. The court therefore concludes that plaintiff’s request to file a first
amended complaint should be denied.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Shon T. Erwin, filed November 30, 2012 (doc. no. 85), is
ADOPTED. The motions to dismiss (doc. nos. 27 and 44) of defendants, Nita
Newport, Judge Richard G. Van Dyck, Scott Biggs, Bret Burns, Tess Brown, Dannie
Sanders and Judge David Stephens, are GRANTED. The motion for summary
judgment (doc. no. 60) of plaintiff, Kenneth R. Heddlesten, is DENIED. The Request
for 30 Days to Submit a First Amended Petition (doc. no. 89) is DENIED.
Plaintiff’s individual capacity claims against defendants Van Dyck, Stephens,
Biggs and Burns are dismissed with prejudice on grounds of absolute immunity.
Plaintiff’s individual capacity claims against defendants Newport and Sanders in
Count I are dismissed without prejudice under Rooker-Feldman,1 Preiser2 and Heck3
and plaintiff’s individual capacity claim against defendant Newport in Count II is
dismissed with prejudice as untimely. Plaintiff’s unspecified claim against defendant
Brown is dismissed without prejudice and without leave to amend. Plaintiff’s official
capacity claims against defendants Van Dyck, Stephens, Biggs, Burns, Brown,

1

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
2

Preiser v. Rodriguez, 411 U.S. 475, 499 (1973).

3

Heck v. Humphrey, 512 U.S. 477 (1994).

2

Sanders and Newport are dismissed without prejudice under the Eleventh
Amendment. To the extent plaintiff seeks relief on behalf of his wife, such claims are
dismissed without prejudice for lack of standing.
The dismissal of this action counts as a strike for purposes of 28 U.S.C.
§ 1915(g).
DATED December 20, 2012.

11-1352p002.wpd

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