Cunningham v. Waukomis Police Department

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION for 3 Motion for Order filed by Keith Clifford Cunningham, 18 Report and Recommendation, Accordingly, theReport and Recommendation is adopted and the action is hereby dismissed, as more fully set out. Signed by Honorable David L. Russell on 3/26/18. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
KEITH WAYNE CUNNINGHAM,
Plaintiff,
v.
CITY OF WAUKOMIS POLICE
DEPARTMENT,
Defendant.

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Case No. 17-1294-R

ORDER
Plaintiff, appearing pro se, filed this action alleging violation of his civil rights with
regard to his April 16, 2013 arrest. He contends he was violently beaten and tased by
officers for the City of Waukomis who were assisting the United States Marshals Service
in effecting his arrest. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the matter was referred
to United States Magistrate Judge Bernard M. Jones for preliminary review. On March 5,
2018, Judge Jones issued a Report and Recommendation wherein he recommended the
action be dismissed as untimely. The matter is currently before the Court on the Plaintiff’s
timely objection to the Report and Recommendation. The timely objection gives rise to the
Court’s obligation to undertake a de novo review of any portion of the Report and
Recommendation to which Plaintiff makes specific objection. Having undertaken this de
novo review, the Court finds as follows.
Judge Jones’ recommendation is entirely correct, because Plaintiff is not entitled to
statutory or equitable tolling of the limitations period. Plaintiff complains that the City
failed to respond to an April 11, 2014 tort claim filed by his sister on his behalf, thereby

delaying the filing of this action under 42 U.S.C. § 1983. A tort claim, however, is not
required to be filed with the City before a person may proceed with a federal claim under
42 U.S.C. § 1983. See Phillips v. Wiseman, 1993 OK 100, ¶ 9, 857 P.2d 50, 52 (“[T]he
[Oklahoma] Governmental Tort Claims Act and 42 U.S.C. § 1983 provide a ‘doublebarreled system,’ and ... escaping liability under one does not necessarily mean that a party
also escapes liability under the other.”). Furthermore, under Oklahoma statute, the City
had ninety days to respond to the tort claim. When no response was received within that
time period, Oklahoma Stat. tit. 51 § 157, provides that the claim is deemed denied and a
lawsuit must be filed within 180 days. Accordingly, the City’s failure to respond to the tort
claim does not provide a basis for avoiding the limitations period, to the extent the
Amended Complaint could be construed as asserting a claim under state law. Finally, the
Court finds no exceptional circumstances that would warrant tolling. Accordingly, the
Report and Recommendation is adopted and the action is hereby dismissed. Plaintiff’s
Motion for Service is denied as moot.
IT IS SO ORDERED this 26th day of March 2018.