Burnett v. Cleveland County Sheriff's Department et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION for 24 Report and Recommendation, The Court hereby ADOPTS the Report and Recommendation in its entirety and DISMISSES the Amended Complaint, as more fully set out. Signed by Honorable David L. Russell on 12/3/18. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOHNNY WILLIAM BURNETT,
Plaintiff,
v.
CLEVELAND COUNTY
SHERIFF’S DEPARTMENT, et al.,
Defendants.

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Case No. CIV-18-182-R

ORDER
Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging violation of his civil
rights with regard to his detention in Cleveland County. Pursuant to 28 U.S.C. §
636(b)(1)(B), the matter was referred to United States Magistrate Judge Shon T. Erwin for
preliminary proceedings. On September 26, 2018, Judge Erwin issued a Report and
Recommendation wherein he recommended that Plaintiff’s Amended Complaint be
dismissed following screening under 28 U.S.C. § 1915A(a) and § 1915(e)(2)(B), because
Plaintiff failed to allege any legal or factual basis for holding any of the three individual
Defendants, members of the Cleveland County Board of County Commissioners sued in
both official and individual capacities, liable. (Doc. No. 24). Plaintiff filed an objection to
the Report and Recommendation (Doc. No. 27) giving rise to the Court’s obligation to
undertake a de novo review of those portions of the Report and Recommendation to which
he makes specific objection. He also filed a Motion for Appointment of Counsel (Doc.No.
29) and a Motion for Extension of Time (Doc. No. 28), seeking therein additional time to

prepare additional objections to the Report and Recommendation. The Court has
considered Plaintiff’s objection and his motions and finds as follows.
Plaintiff’s allegations stem from injuries he allegedly suffered while in an accident
in custody in Cleveland County, because the hood of the transport vehicle flew up,
shattered the windshield, and caused the driver to swerve. He also alleges a fall at the
Lexington Assessment and Reception Center. Judge Erwin’s recommendation of dismissal
was based on Plaintiff’s failure to identify a policy or custom that was the moving force
behind the violation of his rights. His Amended Complaint alleges that the County
Commissioners were responsible for governing the Sheriff’s Department and the Detention
Center. In his objection Plaintiff presents a thorough evaluation of the law regarding
deliberate indifference as it relates to the alleged denial of access to medical care. He does
not, however, address how any of the three Commissioners, in his or her individual
capacity, violated his constitutional rights. To avoid dismissal Plaintiff must have alleged
facts showing that the Commissioners were personally involved in the underlying
violations through their own participation or supervisory control. Dodds v. Richardson,
614 F.3d 1185, 1195 (10th Cir. 2010); see also Brown v. Montoya, 662 F.3d 1152, 1163
(10th Cir. 2011) (“A § 1983 defendant sued in an individual capacity may be subject to
personal liability and/or supervisory liability.”). Plaintiff alleges no facts from which it
could be concluded that the three individuals named had supervisory control over
Plaintiff’s access to medical care.
With regard to claims against the three in their official capacity, which is tantamount
to a claim against the Board, the Amended Complaint contains no factual allegations
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regarding policies or customs that allegedly led jailers and staff to deprive him of necessary
medical care or to otherwise violate his rights. Counties “are subject to liability [under §
1983] only for their official policies or customs.” Starrett v. Wadley, 876 F.2d 808, 818
(10th Cir. 1989). See Monell v. Dep't of Social Serv. of City of New York, 436 U.S. 658,
694 (“[I]t is when execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy,
inflicts the injury that the government as an entity is responsible under § 1983.”). The
Amended Complaint herein does not allege that the Board of County Commissioners had
an official policy or custom that caused the alleged violation of his constitutional rights
and, therefore, the Court will dismiss, under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(1),
Plaintiff’s § 1983 claims against the named Defendants in their official capacities, for
failure to state a claim on which relief may be granted.
In his objection, Plaintiff touches upon Judge Erwin’s point by asserting, “[s]ince
the Oklahoma Board of County Commissioners adopted the policy, it is legislative. We
therefore apply the “Right” approach under Dias. See 567 F.3d [1169] at 1182.” (Doc. No.
27, p. 5). Dias, however, involved a substantive due process challenge to an ordinance
banning pit bulls, and thus is not relevant to the instant dispute. Despite Plaintiff’s protests
to the contrary, it is incumbent upon him to identify the relevant policies or customs that
allegedly resulted in deprivation of his constitutional rights.
The Court hereby ADOPTS the Report and Recommendation in its entirety and
DISMISSES the Amended Complaint. Plaintiff’s Motion for Extension of Time is
DENIED. The Court previously granted Plaintiff numerous extensions of time in which to
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submit his objection, and his efforts are apparent in the Objection that he filed, no
additional time is warranted. Plaintiff’s Motion for Appointment of Counsel is DENIED
AS MOOT. Furthermore, even if the case were to continue, in light of Plaintiff’s Objection,
which is coherent and well-thought, although not sufficient to avoid dismissal, the Court
would not appoint counsel.1
IT IS SO ORDERED this 3rd day of December 2018.

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The Court notes that it does not disregard the serious nature of Plaintiff’s allegations. However, his claims as pled
are directed at the wrong people.

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