Cosby v. State of Oklahoma et al

Filing 15

ORDER APPROVING 12 Report and Recommendation, DENYING IN PART and GRANTING IN PART 14 Objection. To the extent that plf has objected to the Report's conclusion that the complaint, as currently drafted, is insufficient, the objections are DENIED because the court agrees with the magistrate judge that the complaint fails to state a claim. To the extent that plf's objections are construed as a mtn for leave to amend, the mtn is GRANTED. Plf is granted leave to amend his complaint within 21 days of this date, failing which this action will be dismissed at that time, w/o prejudice, for the reasons stated in the Report & w/o need of a separate order. Signed by Honorable Stephen P. Friot on 3/28/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SAMUEL C. COSBY,
Plaintiff,
-vsOKLAHOMA COUNTY SHERIFF’S
OFFICE, et al.,
Defendants.

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Case No. CIV-16-1433-F

ORDER
This action is brought under 42 U.S.C. § 1983, by a state pre-trial detainee,
appearing pro se.

Magistrate Judge Gary M. Purcell filed a Report and

Recommendation which, upon initial review of the complaint, recommends
dismissal without prejudice for failure to state a claim. Deficiencies in the complaint
which the Report identifies include lack of specificity regarding the defendants, lack
of specificity regarding the nature of the conduct out of which this action arises, the
fact that the Sheriff’s Office is not an entity which can be sued in this court, and the
fact that the law requires a county to be sued by naming the Board of County
Commissioners (which the current version of the complaint does not do).
Plaintiff objects to the Report. Doc. no. 14. The objections set out additional
information about the events in question in this action. The objections also include
what appears to be a request to substitute the Board of County Commissioners of
Oklahoma County for the defendants who are currently named in this action. Doc.
no. 14, p. 3 of 3 (“Please amend ‘Defendants’ to be filed against to ‘Board of county
commissioners or whomever is to be held responsible.”).

The court agrees with the Report that the complaint, as it stands, fails to state
a claim and that absent amendment it should be dismissed for the reasons stated by
the magistrate judge. Construing plaintiff’s objections liberally, however, the court
finds that plaintiff has requested leave to amend in an effort to set out his claims with
sufficient specificity and in an otherwise plausible manner, and to substitute the
Board of County Commissioners of Oklahoma County as the defendant.
Plaintiff’s objections are DENIED IN PART and GRANTED IN PART, as
follows. To the extent that plaintiff has objected to the Report’s conclusion that the
complaint, as currently drafted, is insufficient, the objections are DENIED because
the court agrees with the magistrate judge that the complaint fails to state a claim.
To the extent that plaintiff’s objections are construed as a motion for leave to amend,
the motion is GRANTED. This means that despite the undersigned’s APPROVAL
of the Report, this action is not dismissed at this time. Rather, plaintiff is given leave
to amend within twenty-one days of the date of this order. If a timely amended
complaint is not filed, this action will be dismissed at that time, without prejudice,
for the reasons stated in the Report and without need of a separate order.
IT IS SO ORDERED this 28th day of March, 2017.

16-1433p001.docx

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