Thurman v. Oklahoma County Commissioners et al

Filing 46

ORDER ADOPTING REPORT AND RECOMMENDATION 41 of Magistrate Judge Shon T. Erwin and grants the County's motion to dismiss 29 ; the excess force claim against Oklahoma County is dismissed without prejudice; plaintiff is granted leave to file within 14 days an amended complaint setting out any basis he may have for the county's liability for any excess force shown to have been used by defendant Miller. Signed by Honorable Joe Heaton on 11/28/2018. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARCUS THURMAN,
Plaintiff,
vs.
COUNTY COMMISSIONERS OF
OKLAHOMA COUNTY, et al.,
Defendants.

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Case No. CIV-17-0950-HE-M

ORDER
Plaintiff Marcus Thurman, proceeding pro se, brought this action pursuant to 42
U.S.C. § 1983, asserting violations of his constitutional rights by several defendants. He
purported to assert claims against the County Commissioners of Oklahoma County and a
detention officer for the Oklahoma County Detention Center (Miller), claiming that Miller
used excessive force against him.1 On October 16, 2018, U. S. Magistrate Judge Shon T.
Erwin issued a Report and Recommendation recommending that the motion to dismiss of
defendant Oklahoma County be denied insofar as it asserted a lack of standing and/or
jurisdiction, but granted on the basis that the complaint fails to state a claim against the
county. The parties were advised of their right to object to the Report and Recommendation
by November 2, 2018. No objection has been filed. The parties have therefore waived

1

In substance, plaintiff is asserting a claim against Oklahoma County. A county’s board
of county commissioners is not a legal entity capable of being sued; the county itself is the legal
entity. However, under Oklahoma law, a claim is asserted against the county by naming the board
of county commissioners as the defendant. 19 Okla. Stat. § 4.

their right to appellate review of the factual and legal issues addressed in the report.
Cassanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
Accordingly, the court ADOPTS the Report and Recommendation [Doc. #41] and
GRANTS the County’s motion to dismiss [Doc. #29]. The excess force claim against
Oklahoma County is DISMISSED without prejudice. Plaintiff is granted leave to file,
within fourteen (14) days, an amended complaint setting out any basis he may have for
the county’s liability for any excess force shown to have been used by defendant Miller.
IT IS SO ORDERED.
Dated this 28th day of November, 2018.