Dopp v. Larimar et al

Filing 61

ORDER denying 51 Motion to Reconsider/Alter or Amend Court's Order. Signed by Honorable Timothy D. DeGiusti on 11/4/2016. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RICHARD LYNN DOPP,
Plaintiff,
v.
RAY LARIMER, et al.,
Defendants.

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Case No. CIV-15-244-D

ORDER
Before the Court is Plaintiff’s Motion to Reconsider/Alter or Amend Court’s Order
Dated 8-22-26 [Doc. No. 51]. Liberally construing Plaintiff’s pro se filing, the Court treats
the Motion as a request to reconsider a nondispositive pretrial matter determined by a
magistrate judge, pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a).1 Plaintiff
challenges the Order of August 22, 2016 [Doc. No. 50], issued by United States Magistrate
Judge Gary M. Purcell. Plaintiff contends the Order should have been presented in the form
of findings and a recommendation to a district judge regarding Plaintiff’s Motion to
Supplement Complaint [Doc. No. 49]. He also contends that Judge Purcell’s reason for
denying Plaintiff’s request to file a supplemental pleading – to add claims against medical
care providers at his current place of confinement – is “absurd.” See Motion, p.2.
To obtain relief from a magistrate judge’s order, an objecting party must show that
the order “is clearly erroneous or contrary to law.” See 28 U.S.C. § 636(b)(1)(A); see also
Fed. R. Civ. P. 72(a). This standard has not been met with respect to the Order under review.

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Plaintiff cites Fed. R. Civ. P. 59, which applies to a final judgment.

Judge Purcell was authorized to decide a nondispositive pretrial motion governed by
Fed. R. Civ. P. 15(d). See 28 U.S.C. § 636(b)(1)(A) (with certain exceptions, authorizing “a
magistrate judge to hear and determine any pretrial matter pending before the court”); see
also Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1246 (10th Cir. 2015) (motions not
designated as dispositive must “be treated as such . . . when they have an identical effect”)
(internal quotation omitted). Plaintiff desired to add new claims and parties because he was
transferred to another correctional facility after the Complaint was filed, and he views his
medical care providers’ alleged denials of care by a specialist as “continuing wrongs.” See
Motion, p.2. However, the denial of Plaintiff’s request to file a supplemental pleading did
not dispose of any claim. His motion presented a discretionary matter appropriate for
determination by the magistrate judge to whom the case was referred.
Further, Judge Purcell did not abuse his discretion in denying Plaintiff’s motion to file
a supplemental pleading. See Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th
Cir. 2001) (Rule 15(d) motions “are addressed to sound discretion of the trial court”)
(internal quotation omitted). As admitted in the instant Motion, Plaintiff proposed to add
claims alleging similar wrongs later committed by nonparties at a different correctional
facility. As a consequence of the denial, Plaintiff must file a separate action against these
other persons, which he has done. See Dopp v. Honaker, Case No. CIV-16-1164-D, Compl.
(W.D. Okla. Oct. 6, 2016). Judge Purcell acted within his discretion in requiring Plaintiff
to file another civil action regarding subsequent events occurring at a different institution.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider/Alter or Amend
Court’s Order Dated 8-22-16 [Doc. No. 51] is DENIED.
IT IS SO ORDERED this 4th day of November, 2016.

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