Montgomery v. Hicks et al

Filing 10

ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATION 9 (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 6/26/2015. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THOMAS R. MONTGOMERY,
Plaintiff,
vs.
JASON HICKS, et al.,
Defendants.

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Case No. CIV-15-289-M

ORDER
On May 29, 2015, United States Magistrate Judge Shon T. Erwin issued a Report and
Recommendation in this action brought pursuant to 42 U.S.C. § 1983, alleging a violation of
plaintiff’s constitutional rights. The Magistrate Judge recommended that (1) plaintiff’s Fourth
Amendment claims for malicious prosecution and harassment (Counts II and III) related to his
October 2011 criminal charges be dismissed without prejudice and that in light of the applicable
statute of limitations, plaintiff be directed to file an amended complaint within twenty (20) days of
any order adopting the Report and Recommendation, only insofar as he attempts to amend the
Fourth Amendment malicious prosecution and harassment claims related to his October 2011
criminal charges; (2) all claims against defendants in their official capacities be dismissed with
prejudice for failure to state a claim upon which relief can be granted, and (3) plaintiff’s claims
under the Fourth, Eighth and Fourteenth Amendments, as well as his purported claim under HIPAA
and his state law defamation claim, related to his 2009 and May 2011 arrests and subsequent
criminal charges (Counts I, IV, and V) be dismissed with prejudice as untimely. Plaintiff was
advised of his right to object to the Report and Recommendation by June 15, 2015. A review of the
file reveals no objection has been filed.

Upon de novo review, the Court finds that the Report and Recommendation should only be
adopted in part. Specifically, the Court finds that plaintiff’s claims against defendants in their
official capacities should not be dismissed with prejudice for failure to state a claim upon which
relief can be granted. While Eleventh Amendment sovereign immunity precludes suits against
states, state agencies, and state officials sued in their official capacities, the defendants in the instant
action are all employees of the Grady County District Attorney’s Office, and as such are county
employees/officials and not state employees/officials. However, the Court finds that plaintiff’s
claims against defendants in their official capacity brought under the Fourth, Eighth and Fourteenth
Amendments, as well as plaintiff’s purported claim under HIPAA and his state law defamation
claim, related to plaintiff’s 2009 and May 2011 arrests and subsequent criminal charges (Counts I,
IV, and V) should be dismissed with prejudice as untimely, for the reasons set forth in the Report
and Recommendation.
Accordingly, the Court:
(1)
(2)

(3)

ADOPTS IN PART the Report and Recommendation [docket no. 9] issued by the
Magistrate Judge on May 29, 2015;
DISMISSES without prejudice plaintiff’s Fourth Amendment claims for malicious
prosecution and harassment (Counts II and III) related to his October 2011 criminal
charges and in light of the applicable statute of limitations, DIRECTS plaintiff to file
an amended complaint, only as to his Fourth Amendment malicious prosecution and
harassment claims related to his October 2011 criminal charges, within twenty (20)
days of the date of this Order; and
DISMISSES with prejudice plaintiff’s claims under the Fourth, Eighth and
Fourteenth Amendments, as well as his purported claim under HIPAA and his state
law defamation claim, related to his 2009 and May 2011 arrests and subsequent
criminal charges (Counts I, IV, and V) as untimely.

IT IS SO ORDERED this 26th day of June, 2015.