Jordanoff v. Lester et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATION for 43 Report and Recommendation, 45 Report and Recommendation, 46 Report and Recommendation, 44 Report and Recommendation, ORDER REFERRING CASE to Magistrate Judge Suzanne Mitchell, as more fully set out. Signed by Honorable David L. Russell on 3/28/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAMES JORDANOFF, IV,
Plaintiff,
v.
JOE LESTER, Sherriff of
Cleveland County; BARBARA
MCSWAIN, Chief of Detention;
SERGEANT GARVIN THOMAS;
and DETENTION OFFICER
JOSH COFFEY.1
Defendants.

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Case No. CIV-15-939-R

ORDER
Before the Court are the Report and Recommendations of United States
Magistrate Judge Suzanne Mitchell on Defendants Lester, McSwain, Thomas, and
Coffey’s Motions to Dismiss, entered on February 19, 2016. Doc. Nos. 43-46. Plaintiff
filed a Response to the Magistrate Judge’s conclusions in the Report and
Recommendation (“Response”). Doc. No. 47. Pursuant to 28 U.S.C. § 636(b)(1)(B), the
Court reviews the Report and Recommendations de novo in light of Plaintiff’s response.
I.

Plaintiff’s Claims
Plaintiff brings this action under 42 U.S.C. § 1983 and Oklahoma law against

several defendants on alleged mistreatment at the Cleveland County Jail. The gravamen
of Plaintiff’s claims against all defendants concern alleged actions of Detention Officer

1
For clarity, this Order uses Defendants’ style which reflects Defendants’ correct titles and name
spelling. Docs. 29-32.

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Coffey. Plaintiff claims that Defendant Coffey retaliated against, threatened, verbally and
sexually harassed, and used excessive force against Plaintiff. The Magistrate Judge
construed Plaintiff’s claims as those for excessive force, threats and harassment, in
violation of the Fourteenth Amendment; retaliation in violation of the First Amendment;
and alienation of affection, in violation of Oklahoma law. The Magistrate Judge noted
that Plaintiff’s request for injunctive relief was directed at the Cleveland County Jail and
therefore construed the complaint to allege an official capacity claim against only Sherriff
Lester.
II.

The Magistrate Judge’s Report and Recommendation
The Magistrate Judge recommended that Plaintiff’s claims under Oklahoma law

against all defendants be dismissed with prejudice because the tort for alienation of
affection no longer exists. The Magistrate Judge’s recommendations as to the remaining
claims are summarized below.
A.

Defendant Lester

Plaintiff names Defendant Lester, Sherriff of Cleveland County, as a defendant for
“allowing his subordinates to abuse Plaintiff.” Doc. No. 1 at 1-2. Plaintiff seeks monetary
relief and an injunction to “hault [sic] the Cleveland County Jail form allowing D.O.
Coffee to continue to harass and threaten Plaintiff.” Id. at 5, 8.
The Magistrate Judge recommended that all of Plaintiff’s claims against
Defendant Lester be dismissed. The Magistrate Judge recommended dismissal without
prejudice of Plaintiff’s § 1983 claim against Defendant Lester in his official capacity
because Plaintiff failed “to allege that Cleveland County had a policy, custom, or practice
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which caused Officer Coffey’s alleged wrongdoing or played any part in his alleged
violations.” Doc. No. 43, at 5. The Magistrate Judge also recommended dismissal without
prejudice of Plaintiff’s § 1983 claim against Defendant Lester in his individual capacity
because Plaintiff failed to “sufficiently establish Defendant Lester’s personal
participation.” Id. at 8.
B.

Defendant McSwain

Plaintiff names Defendant McSwain, Chief of Detention, as a defendant because
“Plaintiff has brought these issues explained herein to Sgt. Thomas, Lt. A. Bear and
[McSwain Chief], by means of informal resolution . . . .” Doc. No. 1 at 8; that she
ordered Defendant Coffey “not to have any contact with [Plaintiff],” [Doc. No. 16, at 1]
and that Officer Coffey disregarded Defendant McSwain’s direct orders. Id. at 3. He also
alleges that he complained to Defendant McSwain after the alleged assault. Id., Ex. A.
The Magistrate Judge recommended that Plaintiff’s claims against Defendant
McSwain be dismissed. The Magistrate Judge recommended dismissal without prejudice
of Plaintiff’s § 1983 claim against Defendant McSwain in her individual capacity because
Plaintiff failed to “sufficiently establish Defendant McSwain’s personal participation.”
Doc. No. 44 at 6-7.
C.

Defendant Thomas

Plaintiff describes Defendant Thomas as a “Shift Supervisor” and states that he
informed Defendant Thomas of Defendant Coffey’s conduct. Doc. 1 at 4, 8. He also
alleges that Defendant Thomas was with Defendant Coffey when Coffey banged on
Plaintiff’s window and door on their way home. Id. at 4.
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The Magistrate Judge recommended that Plaintiff’s claims against Defendant
Thomas be dismissed. The Magistrate Judge found that Plaintiff’s claims relating to
Defendant Thomas’s direct involvement with the alleged harassment did not rise to the
level of a constitutional violation and recommended those claims be dismissed with
prejudice. Doc. No. 45 at 6. As to Plaintiff’s claims relating to Defendant Thomas’s
supervisory capacity, the Magistrate Judge found those claims should be dismissed
without prejudice because, besides the window-banging incident underlying his claims of
direct harassment, Plaintiff did not allege any personal involvement by Defendant
Thomas. Id. at 7-8.
D.

Defendant Coffey

Plaintiff alleges that Defendant Coffey harassed Plaintiff by pointing his taser gun
at him a number of times; telling Plaintiff to masturbate for him, but then told him he was
joking; banging on Plaintiff’s cell window; telling Plaintiff he would die in prison;
making threatening hand gestures, and threatening revenge and to kill Plaintiff. Doc. No.
1 at 2, 4-5. Plaintiff also alleges that in October 2015, Defendant Coffey used excessive
force against him. Docs. 16, 18.
Examining Plaintiff’s claims under both Rule 12(b)(6) and its screening obligation
The Magistrate Judge found that some, not all, of Plaintiff’s claims against Defendant
Coffey warranted dismissal. The Magistrate Judge found that Plaintiff’s claims relating to
verbal threats and harassment should be dismissed with prejudice because, while
troubling, the alleged acts did not establish a constitutional violation. Doc. No. 46 at 4.
The Magistrate Judge also recommended that Plaintiff’s claim for alienation of affection
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be dismissed with prejudice because the tort no longer exists under Oklahoma law. Id. at
9. The Magistrate Judge noted that Plaintiff’s claims against Defendant Coffey for excess
force and retaliation remain.
III.

Plaintiff’s Response to the Report and Recommendation
Though Plaintiff does not directly object to the Report and Recommendation,2 he

did file a “Response to the Report and Recommendation,” asking the Court to consider
additional evidence that relates to the incident where “Defendant Coffee caused excessive
force to be used against plaintiff for plaintiffs exercising of his right to access to this
Federal Court.” Doc. No. 47, at 2. This evidence includes (1) “15 minute sight checks log
sheet” which Plaintiff submits is proof that a nurse took his vitals and noted cuts and
bruising on Plaintiff following an alleged beating at the hands of officers using excessive
force; (2) “inmate grievance #220097 showing Coffee to be ordered by Chief McSwain
to not have any interaction with plaintiff;” and (3) a letter from Plaintiff to the Court
Clerk, dated March 6, 2016 with a USPS tracking number. Although not clear, Plaintiff’s
March 6 letter and tracking number attached to the letter seem to indicate that he
previously attempted, unsuccessfully, to transmit copies of the logs and the grievance to
the Court. Doc. Nos. 47-1, 47-2.

2
It appears Plaintiff’s decision to refer to his filing as a “Response” rather than an “Objection” was
intentional, as Plaintiff has filed Objections to Report and Recommendations in other actions. See, e.g.,
Jordanoff v. Lester et al, Case No. 15-00719-R, Doc. No. 17 (“Objection to Report and
Recommendation”); Jordanoff v. OK, D.O.C., Case No. 15-974, Doc. No. 9 (“Objection to Report and
Recommendation”).

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IV.

Analysis
The undersigned agrees with the analysis by the Magistrate Judge and ADOPTS

her Report and Recommendations.
Plaintiff’s Response does not compel a different result. The Response does not
address any of the Magistrate Judge’s findings or recommendations. Rather, it seems
Plaintiff has submitted his Response to introduce copies of the logs and the grievance as
evidence for his excessive force claims. The Magistrate Judge explicitly stated that
Plaintiff’s excessive force and retaliation claims against Defendant Coffey remain in this
case. Doc. No. 46 at 9. To the extent Plaintiff offers this information to save his claims
against Defendants Lester, McSwain, or Thomas, it fails to cure the deficiencies that the
Magistrate Judge identified in her Report and Recommendation. Likewise, the
information fails to save his claims against Defendant Coffey relating to verbal threats
and harassment.
V.

Conclusion
The undersigned agrees with the Report and Recommendation of the Magistrate

Judge. Accordingly, the Report and Recommendations [Doc. Nos. 43-46] are ADOPTED
in their entirety. In accordance with the foregoing:
Plaintiff’s claims under Oklahoma law against all Defendants are DISMISSED
WITH PREJUDICE.
Plaintiff’s § 1983 claims against Defendants Lester and McSwain are
DISMISSED WITHOUT PREJUDICE.

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Plaintiff’s Fourteenth Amendment claim that Defendant Thomas either banged on
Plaintiff’s door or failed to stop Defendant Coffey from banging on the door is
DISMISSED WITH PREJUDICE. Plaintiff’s remaining § 1983 claims against Defendant
Thomas are DISMISSED WITHOUT PREJUDICE.
Plaintiff’s Fourteenth Amendment harassment claims against Defendant Coffey
are DISMISSED WITH PREJUDICE. Plaintiff’s First Amendment retaliation claim and
excessive force claim against Defendant Coffey remain.
This matter is re-referred to United States Magistrate Judge Suzanne Mitchell for
further proceedings relation to the remaining claims against Defendant Coffey.
IT IS SO ORDERED this 28th day of March, 2016.

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