Duvall v. Oklahoma State Board of Osteopathic Examiners et al

Filing 83

ORDER ADOPTING 72 Report and Recommendation, DENYING as moot 37 Motion for Partial Summary Judgment filed by John C Duvall, GRANTING 43 Motion to Dismiss filed by Oklahoma State Board of Osteopathic Examiners, GRANTING 46 Motion to Dis miss, Motion for Summary Judgment filed by Jeffrey Coy Troutt, GRANTING 66 Motion to Dismiss filed by Betsy Hormel, DENYING 71 Motion for Imposition of Service Costs Upon Defendant Betsy Hormel filed by John C Duvall, DENYING 78 Motion for Leave to Amend His Complaint and to Add Additional Parties filed by John C Duvall. Signed by Honorable Stephen P. Friot on 10/15/2018. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
)
)
)
Plaintiff,
)
)
-vs)
)
OKLAHOMA STATE BOARD OF
OSTEOPATHIC EXAMINERS, et al., )
)
)
Defendants.
JOHN C. DUVALL,

Case No. CIV-17-0247-F

ORDER
This action, referred to in the Second Amended Complaint as a “diversity &
civil rights” action, is brought by plaintiff John C. Duvall, a Missouri prisoner
currently in the custody of the Oklahoma Department of Corrections. Plaintiff
proceeds pro se. His pleadings are liberally construed.
Magistrate Judge Charles B. Goodwin (now United States District Judge
Goodwin) issued a Report and Recommendation on August 10, 2018,
recommending that defendants’ dispositive motions (doc. nos. 43, 46, 66) be
granted, and that the court grant defendants summary judgment on, or dismissal of,
all of plaintiff’s federal and state-law claims. Doc. no. 72 (the Report). The Report
also recommends denying as moot plaintiff’s motion for partial summary judgment.
Doc. no. 37.
Plaintiff objects to the Report. Doc. nos. 79, 81. All objected to matters have
been reviewed de novo. Plaintiff’s objections to the Report are considered and
denied in Part I of this order.

In addition, plaintiff moves to impose service costs on defendant Betsy
Hormel. Doc. no. 71. That motion was filed one day before the Report was entered
and is not addressed in the Report. That motion is considered and denied in Part II
of this order.
After the filing of the Report, plaintiff moved for leave to amend his Second
Amended Complaint and for permission to add ten new parties to this action. Doc.
no. 78. Defendant Oklahoma State Board of Osteopathic Examiners (OSBOE)
responded, objecting to the proposed amendment and to the new parties. Doc. no.
80. Plaintiff filed a reply brief. Doc. no. 82. Plaintiff’s motion for leave to amend
is considered and denied in Part III of this order.
I. Plaintiff’s Objections to the Report
Plaintiff argues that the magistrate judge “supplied defendants with their
specific factual defense under the PLRA.” Doc. no. 2, p. 17 (proposition heading).
Plaintiff complains, basically, that the magistrate judge addressed arguments which
the defendants either did not make or did not fully make. The magistrate judge did
not improperly advocate on behalf of the defendants. This objection will be denied.
Most of plaintiff’s objections to the Report center on the contention that the
Report incorrectly concludes that plaintiff failed to exhaust his administrative
remedies within the prison system. Plaintiff argues that he did not have to exhaust
because prison officials did not reach the merits of his complaints when they
answered his requests to staff or when they rejected his emergency grievance. He
contends that absent a ruling on the merits of his complaints, there were no further,
available administrative remedies for him to exhaust. The Report addresses this
issue. See, e.g., doc. no. 72, pp. 10-11. As the cases cited in the Report demonstrate,
a plaintiff is required to exhaust if prison officials return a grievance without action.

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This rule applies even if the grievance was improperly rejected by prison officials
because an appeal might have rectified the error. All of plaintiff’s objections related
to exhaustion will be denied.
Plaintiff argues the Report recommends, incorrectly, dismissal of the
intentional infliction of emotional distress (IIED) claim. The Report recommends
dismissal of this claim, without prejudice, for failure to state a claim. Plaintiff
contends the Report should have taken into account the “settings” in which the
defendants’ alleged conduct occurred. With or without any additional consideration
of the “settings” or context of the alleged conduct, a plausible claim for relief is not
stated. This objection will be denied.
Plaintiff’s supplement to his objections has also been considered.

The

supplement includes nothing which changes the court’s conclusion that the Report
should be adopted in all respects.
After careful consideration of all of plaintiff’s objections, whether or not
specifically addressed in this order, the court finds that it agrees with the findings
and recommendations stated in the Report. Accordingly, plaintiff’s objections to the
Report are DENIED. Doc. nos. 79, 81. The Report is ADOPTED, ACCEPTED
and AFFIRMED. Doc. no. 72. The following rulings are made as recommended
in the Report.
Defendants’ dispositive motions (doc. nos. 43, 46, 66) are GRANTED.
Specifically:
-- Defendants Troutt and Hormel are GRANTED SUMMARY
JUDGMENT in their favor on all of plaintiff’s federal claims;

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-- Plaintiff’s state-law claims as to defendants Troutt and Hormel are
DISMISSED, without prejudice, for failure to state a claim upon which relief
may be granted; and
--

Plaintiff’s

state-law

claim

against

defendant

OSBOE

is

DISMISSED, without prejudice, as barred by the Eleventh Amendment.
In addition, plaintiff’s motion for partial summary judgment against OSBOE
is DENIED as moot. Doc. no. 37.
II. Plaintiff’s Motion for Imposition of Service Costs
Upon Defendant Betsy Hormel
Plaintiff seeks an order imposing $50.00 in service fees on defendant Hormel.
Doc. no. 71. The motion does not establish all of the prerequisites for such an order.
See generally, Rule 4(d)(1),(2), Fed. R. Civ. P. For example, the motion relies on
plaintiff’s affidavit at doc. no. 61-1. The motion, and that affidavit, state that
plaintiff mailed “Two (2) copies of the ‘Waiver of the Service of Summons’ forms”
to Hormel. But neither the motion nor the affidavit attachs a copy of the forms
mailed to Hormel. Moreover, the wording of the motion and the affidavit suggest
that only the form entitled “Waiver of the Service of Summons” was mailed, as these
documents mention a form by that title but say nothing about the form entitled
“Notice of a Lawsuit and Request to Waive Service of Summons” or the form
entitled “Duty to Avoid Unnecessary Expenses of Serving a Summons.” All of these
forms are appended to Rule 4, and they are all important because, among other
things, they advise a defendant of the consequences of opting not to waive service.1

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Under Rule 4(d)(1)(C) and (D), the notice must include two copies of the waiver form “appended
to this Rule 4,” and plaintiff must “inform the defendant, using the form appended to this Rule 4,
of the consequences of waiving and not waiving service….”

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In addition, the court notes that plaintiff’s motion is not limited to a request
that costs be imposed on Hormel for refusing to waive service. The motion goes
farther than that, asking the court to order the State of Oklahoma not to pay those
costs on behalf of Hormel and not to reimburse Hormel for those costs. This court
does not have jurisdiction to direct the State of Oklahoma regarding what it may or
may not pay or reimburse in relation to this issue.
Plaintiff has not made a sufficient showing that he satisfactorily complied with
Rule 4(d), Fed. R. Civ. P., so as to be entitled to an order imposing $50.00 in service
costs on Hormel. The motion for imposition of service costs on defendant Hormel
is DENIED. Doc. no. 71. This motion is denied without prejudice to re-urging,
within fourteen days of today’s date, if plaintiff can file a new motion with attached
evidence establishing substantial compliance with all of the requirements of Rule
4(d), Fed. R. Civ. P.2
III. Plaintiff’s Motion for Leave to Amend His Complaint
And to Add Parties
The original complaint was filed on March 6, 2017, over 19 months ago. Doc.
no. 1. On June 1, 2017, plaintiff filed a First Amended Complaint. Doc. no. 11. On
November 24, 2017, plaintiff sought leave to file another amendment and to add
parties. Doc. no. 27. At that time, this action was still before the magistrate judge.
That motion was granted, and this action proceeded on the basis of the Second
Amended Complaint. On September 12, 2018, after the issuance of a detailed Report
(the Report affirmed in Part I of this order), plaintiff again sought leave to amend
this action by filing a Third Amended Complaint which would add new allegations
2

Hormel did not respond to the current motion. If a new motion is filed, Hormel is required to
respond to it unless this issue has, by then, been otherwise resolved (for example, by payment to
plaintiff), in which case Hormel must so advise the court.

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and new parties. OSBOE objects to the motion, arguing that the amendment, at this
late stage, would be highly prejudicial.
The court is not required to permit a new version of the complaint at this late
stage, much less a version which would add ten new parties. In addition, many of
the proposed amended allegations relate to arguments regarding exhaustion which
have already been rejected. Plaintiff’s motion for leave to amend is DENIED. Doc.
no. 78.
IT IS SO ORDERED this 15th day of October, 2018.

17-0247p006.docx

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