Smith v. Mantle et al

Filing 60

ORDER ADOPTING REPORT AND RECOMMENDATION 54 of Magistrate Judge Shon T. Erwin...because plaintiff has stated a valid claim for failure to intervene in the use of excessive force against defendant Baisden in his individual capacity, defendant Baisden's motion to dismiss 37 is denied; plaintiff's Amended Complaint 51 is stricken; this order does not terminate the referral to the magistrate judge. Signed by Honorable Joe Heaton on 6/20/2017. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FRANKLIN SMITH,
Plaintiff,
vs.
MANTLE, et al.,
Defendants.

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NO. CIV-16-0394-HE

ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this § 1983
action alleging numerous violations of his constitutional rights. The court adopted a prior
Report and Recommendation issued by Magistrate Judge Shon T. Erwin and dismissed many
of plaintiff’s claims. The magistrate judge has issued a second Report and Recommendation,
which addresses a motion to dismiss filed by defendant David Baisden, a Captain with the
Oklahoma County Sheriff’s Department. The magistrate judge recommends that the court
deny defendant Baisden’s motion, which he concludes states a claim against the officer for
failure to intervene and prevent excessive force. The magistrate judge also recommends that
the court deny plaintiff’s attempt to assert new claims, which he makes both in his response
to defendant Baisden’s motion and in an amended complaint he filed without leave of court.

Both defendant Baisden and plaintiff have filed objections to the Report and
Recommendation.
In his objection, defendant Baisden asserts that the magistrate judge misconstrued
the complaint. He argues that its focus is not the excessive force plaintiff alleges was used
to effect his arrest. Rather, defendant Baisden argues, the “kernel” of the complaint is a

collateral attack on an extradition warrant which plaintiff seeks to have overturned.
Defendant Baisden also contends that plaintiff’s handcuffing or hand tying claim should
be dismissed because plaintiff failed to plead that he suffered more than a de minimis
injury.
The court agrees with the magistrate judge’s analysis of plaintiff’s allegations.
Defendant Baisden has not accorded the complaint the liberal construction to which it is
entitled due to plaintiff’s pro se status. The complaint satisfies the fair notice requirements
of Fed.R.Civ.P. 8(a) 1 and states a claim for excessive force against defendant Baisden. 2
Its dismissal is not warranted under either Rule 8(a) or Rule 12(b)(6).
In his objection, plaintiff makes additional allegations and asserts new claims
against defendants Baisden and Bowein, as he did in prior pleadings. See Doc. Nos. 42,
49. However, plaintiff has done so without leave of court. That, plus prior court rulings,
were the bases for the magistrate judge’s recommendation that the court disallow any
additional claims against defendants Baisden and Bowein and that it strike the Amended
Complaint plaintiff filed. 3

1

Although defendant Baisden also nominally seeks dismissal pursuant to Rule 10(b), as
the magistrate judge noted, he fails to explain why dismissal is required under that rule.
2
Plaintiff has not alleged a separate excessive force claim based solely on handcuffing.
Defendant also failed to raise the issue of de minimis injury with the magistrate judge. Generally,
issues raised for the first time in an objection to the magistrate judge’s recommendation are
deemed waived.
3
The court previously granted plaintiff leave to amend to correct certain identified
deficiencies in his claims against defendants Whetsel and Mantle, but advised him he could not,
when he filed his amended complaint, add new claims or parties. That did not, though, preclude
plaintiff from subsequently seeking leave to amend as permitted by the Federal Rules of Civil
Procedure. A plaintiff may not add new claims in responses to motions.

Plaintiff offers no explanation as to why he failed to include the claims he seeks to
add in his initial complaint, why he should be allowed at this time to expand his claims
against defendants Baisden and Bowein or why he failed to seek leave to amend. Having
reviewed plaintiff’s proposed claims, the court also is not persuaded they could withstand
a Twombly4 challenge. For these reasons, the court agrees with the magistrate judge that
the case should proceed on plaintiff’s excessive force claims against defendants Baisden
and Bowein.
Accordingly,

the

court

adopts

Magistrate

Judge

Erwin’s

Report

and

Recommendation [Doc. #54]. Because plaintiff has stated a valid claim for failure to
intervene in the use of excessive force against defendant Baisden in his individual capacity,
defendant Baisden’s motion to dismiss [Doc. #37] is denied.
Complaint [Doc. #51] is stricken.

This order does not terminate the referral to the

magistrate judge.
IT IS SO ORDERED.
Dated this 20th day of June, 2017.

4

Plaintiff’s Amended

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).