Madden v. Cleveland County of et al

Filing 10

ORDER ADOPTING 8 Report and Recommendation. Plf's civil rights complaint is dismissed upon filing for failure to state a claim. To the extent plf has asserted claims against the Cleveland County District Attorney & a Cleveland County Court J udge, those claims are DISMISSED w/PREJUDICE based upon prosecutorial & judicial immunity, respectively. Plf's claims against dft Cleveland County & the official capacity claims against dft Justin Pittman, as well as the official capacity claim s against dfts Serena Melton, Deny Oesterling, Gary Hopcus, Aury Barrett, Derek Geiges, Gordon Herndon & Audra Overstreet are DISMISSED w/o PREJUDICE for failure to state a claim upon which relief may be granted. Plf's individual capacity claim s against dft Justin Pittman & against dfts Serena Melton, Deny Oesterling, Gary Hopcus, Aury Barrett, Derek Geiges, Gordon Herndon & Audra Overstreet are DISMISSED w/o PREJUDICE for failure to state a claim upon which relief may be granted. To the extent plf has raised claims sounding in habeas & seeking habeas relief, the court ABSTAINS from hearing those claims until the state prosecution against plf is resolved & plf has exhausted his state court remedies. The dismissal of plf's civil rights complaint counts as a strike pursuant to 28 USC § 1915(g). Signed by Honorable Stephen P. Friot on 10/27/2016. (llg)

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

ROBERT ALAN MADDEN,
Plaintiff,
-vsCLEVELAND COUNTY, et al.,
Defendants.

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Case No. CIV-16-829-F

ORDER
On October 17, 2016, United States Magistrate Judge Bernard M. Jones issued
a Report and Recommendation, recommending that plaintiff’s civil rights complaint
be dismissed upon filing for failure to state a claim upon which relief may be granted
and that the dismissal count as a strike pursuant to 28 U.S.C. § 1915(g). Magistrate
Judge Jones specifically recommended that (1) to the extent plaintiff has asserted
claims against the Cleveland County District Attorney and a Cleveland County Court
Judge, those claims should be dismissed with prejudice based upon prosecutorial and
judicial immunity, respectively; (2) plaintiff’s claims against defendant, Cleveland
County, and the official capacity claims against defendant Pittman, as well as the
official capacity claims against the Norman Police Defendants, should be dismissed
without prejudice for failure to state a claim upon which relief may be granted; (3)
plaintiff’s individual capacity claims against defendant Pittman and the Norman
Police Defendants should be dismissed without prejudice for failure to state a claim
upon which relief may be granted; and (4) to the extent plaintiff has raised claims
sounding in habeas and seeking habeas relief, the court should abstain from hearing

those claims until the state prosecution against plaintiff is resolved, and plaintiff has
exhausted his state court remedies.
On October 24, 2016, plaintiff filed an untitled document which the court clerk
has construed as plaintiff’s objection to the Report and Recommendation. See, doc.
no. 9. In his filing, plaintiff cites various case and statutory authority. Plaintiff also
requests that to the extent he has raised claims sounding in habeas relief, the court
should abstain from hearing those claims until the state prosecution is resolved and
the state court remedies have been exhausted. Although it is not clear from plaintiff’s
filing that he is actually objecting to any of the recommended rulings of Magistrate
Judge Jones, the court nonetheless has conducted a de novo review of the Report and
Recommendation in accordance with 28 U.S.C. § 636(b)(1). Having done so, the
court concurs with the recommended rulings. Therefore, the court accepts, adopts and
affirms the Report and Recommendation in its entirety.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Bernard M. Jones on October 17, 2016 (doc. no. 8) is ACCEPTED,
ADOPTED and AFFIRMED.
Plaintiff’s civil rights complaint is dismissed upon filing for failure to state a
claim. Specifically, to the extent plaintiff has asserted claims against the Cleveland
County District Attorney and a Cleveland County Court Judge, those claims are
DISMISSED WITH PREJUDICE based upon prosecutorial and judicial immunity,
respectively. Plaintiff’s claims against defendant, Cleveland County, and the official
capacity claims against defendant, Justin Pittman, as well as the official capacity
claims against defendants, Serena Melton, Deny Oesterling, Gary Hopcus, Aury
Barrett, Derek Geiges, Gordon Herndon and Audra Overstreet, are DISMISSED
WITHOUT PREJUDICE for failure to state a claim upon which relief may be
granted. Plaintiff’s individual capacity claims against defendant, Justin Pittman, and
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against defendants, Serena Melton, Deny Oesterling, Gary Hopcus, Aury Barrett,
Derek Geiges, Gordon Herndon and Audra Overstreet, are DISMISSED WITHOUT
PREJUDICE for failure to state a claim upon which relief may be granted. To the
extent plaintiff has raised claims sounding in habeas and seeking habeas relief, the
court ABSTAINS from hearing those claims until the state prosecution against
plaintiff is resolved, and plaintiff has exhausted his state court remedies.
The dismissal of plaintiff’s civil rights complaint counts as a strike pursuant to
28 U.S.C. § 1915(g).
DATED October 27, 2016.

16-0829p001.wpd

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