Burnett v. Cleveland County Sheriff's Department et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION for 11 Report and Recommendation,, 4 Motion for Extension of Time filed by Johnny William Burnett. Plaintiff shall file his amended complaint within forty-five days of entry of this Order. Signed by Honorable David L. Russell on 7/27/18. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOHNNY WILLIAM BURNETT,
Plaintiff,
v.
CLEVELAND COUNTY
SHERIFFS DEPARTMENT, et al.,
Defendants.
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Case No. CIV-18-182-R
ORDER
Plaintiff filed this action against Joseph Lester, Cleveland County Sheriff, and Joe
Allbaugh, Director of the Oklahoma Department of Corrections, identifying that he was
suing both in their official capacities. He also named the F. DeWayne Beggs Detention
Center in the caption. Within the body of his Complaint Plaintiff identified Cleveland
County Sheriff’s Department and the Oklahoma Department of Corrections as Defendants.
Plaintiff’s allegations, while difficult to understand, allege violation of his civil rights
during his incarceration, specifically as it relates to medical treatment he contends was
necessary because of an accident while he was being transported on February 25, 2016.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the matter was referred to United States
Magistrate Judge Shon T. Erwin for preliminary proceedings. On April 17, 2018, Judge
Erwin issued a Report and Recommendation wherein he recommended the Complaint be
dismissed following screening pursuant to 28 U.S.C. § 1915A(a) and § 1915(e)(2)(B). The
Court granted Plaintiff extensions of time in which to object, and on July 26, 2018, he filed
an objection. Having considered his objection and the requests therein, the Court orders as
follows.
Judge Erwin recommended the action be dismissed because Defendant Allbaugh, in
his official capacity, and the Department of Corrections are entitled to Eleventh
Amendment immunity.
With regard to Defendants Cleveland County Sheriff’s
Department and the F. Dewayne Beggs Detention Center Judge Erwin recommended
dismissal because neither is an entity amenable to being sued. He noted in the Report and
Recommendation that the county could be sued by naming the Board of County
Commissioners. With regard to Defendant Lester, again in his official capacity, Judge
Erwin noted that pleading the claim in this manner was the same as pleading a cause of
action against Cleveland County, which required that Plaintiff allege an official policy or
custom that was deliberately indifferent to his constitutional rights and the moving force
behind Mr. Burnett’s injury. The Complaint and its attachments, even given liberal
construction, did not include any such allegations. As a result, Judge Erwin recommended
dismissal without prejudice.
On May 3, 2018, Plaintiff filed a document entitled “Objection” indicating therein
a lack of legal resources to appropriately respond to the Report and Recommendation. The
Court granted him additional time in which to object, hoping he would gain access to legal
materials in the interim. On June 21, 2018, Plaintiff requested additional time in which to
object because he was without legal materials due to his placement in administrative
segregation. Ultimately, Plaintiff filed this timely objection. Therein he reiterates that he
did not receive proper medical treatment following an accident while in custody. He does
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not, however, remedy the deficiencies identified by Judge Erwin other than by requesting
amendment to his complaint. Plaintiff asks that the Cleveland County Commissioners
Office and Rod Cleveland, Darry Stacy, and Howard Haralson be added to the lawsuit. The
Court hereby GRANTS Plaintiff leave to amend. He must, however, file an entirely new
complaint; the Court cannot merely substitute parties. Furthermore, because Plaintiff is
seeking relief under 42 U.S.C. § 1983, he must specify the role each Defendant played in
the alleged violation of his constitutional rights. Plaintiff shall file his amended complaint
within forty-five days of entry of this Order. If Plaintiff does not file a timely amended
complaint, the action will be dismissed without prejudice.
For the reasons stated herein, the Report and Recommendation is adopted; the Court
grants Plaintiff leave to amend in an effort to plead his claims against newly identified
defendants.
IT IS SO ORDERED this 27th day of July 2018.
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