Dease v. Allbaugh et al

Filing 46

ORDER ADOPTING 33 Report and Recommendation, ADOPTING 34 Report and Recommendation, DENYING as moot 18 Motion (construed as a motion for TRO) filed by William Henry Dease, GRANTING 31 Motion to Dismiss filed by Kelley Brown, Carl Bear, Lonnie Lawson, Joe M Allbaugh, Misty Edwards, Donna Blackman. Said dfts are DISMISSED from this action w/o prejudice. This action remains referred to the Magistrate Judge. Signed by Honorable Stephen P. Friot on 10/1/2018. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM HENRY DEASE,
Plaintiff,
-vsJOE M. ALLBAUGH, et al.,
Defendants.

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Case No. CIV-18-0282-F

ORDER
Plaintiff William Henry Dease, a state prisoner appearing pro se and in forma
pauperis, has filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his
civil rights. Before the court are a Report and Recommendation of July 24, 2018
(doc. no. 33), and a Report and Recommendation of July 31, 2018 (doc. no. 34).
Both Reports are submitted by Magistrate Judge Bernard M. Jones. Plaintiff has
objected to both Reports (objections to July 24 Report at doc. no. 35; objections to
July 31 Report at doc. no. 40), and has also filed other papers (doc. nos. 41, 42, 43,
44), all of which have been considered. All objected to matters have been reviewed
de novo.
1. The July 24 Report
In the July 24 Report, Magistrate Judge Jones recommends that plaintiff’s
motion at doc. no. 18 be construed as a motion for a temporary restraining order or
injunctive relief, and that the motion, so construed, be denied as moot. As stated in
the Report, the motion asks the court to order prison officials at the Joseph Harp
Correctional Center (JHCC) in Lexington, Oklahoma, to return plaintiff’s legal
materials, to provide plaintiff with all documents and video tapes related to his

disciplinary conviction, to allow prisoners in the special housing unit the same
access to legal materials as allowed to the general population, and to order prison
officials to show cause why this court should not enter an injunction requiring prison
officials to stop censoring legal mail. Doc. no. 33, pp. 1-2. The Report found that
because plaintiff is no longer incarcerated at JHCC and is currently incarcerated at
the Dick Conner Correctional Center (DCCC) in Hominy, Oklahoma, the requests
for a temporary restraining order and injunctive relief should be denied as moot.
Plaintiff’s objections make various arguments, not all of which are material to
the issue before the court. Among other things, plaintiff argues that the mootness
doctrine should not be applied or enforced because the entire Department of
Corrections is managed by Joe M. Allbaugh, who is responsible for all prisons
including JHCC and DCCC. Doc. no. 35, p. 5.
Having considered all of plaintiff’s arguments (whether or not addressed
here), the court finds that it agrees with the Magistrate Judge’s recommendations
and that there is no need for any further analysis. Construed as a motion for a
temporary restraining order or for injunctive relief, plaintiff’s motion at doc. no. 18
is moot and is DENIED on that basis.
2. The July 31 Report
The July 31 Report recommends that the court grant the motion to dismiss
filed by Joe M. Allbaugh, Carl Bear, Donna Blackman, Kelley Brown, Misty
Edwards and Lonnie Lawson. Doc. no. 31. The Report recommends granting the
motion and dismissing these movants from this action because none of them is
named in the Amended Complaint which therefore fails to state a claim for relief
against them. The Report also notes that plaintiff did not respond to the motion to
dismiss within the time period allowed, although the time period had been explained
to plaintiff by the Magistrate Judge. In addition, the Report notes that plaintiff had
been expressly cautioned that the amended complaint must name only those
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defendants against whom plaintiff wished to proceed, that it must include all claims
plaintiff wished to assert, and that the amended complaint would supersede the
original complaint.
In his objections, plaintiff argues, among other things, that he should be
allowed to proceed against the movants because the court retains jurisdiction in this
matter by virtue of the original complaint naming the Director of the Oklahoma
Department of Corrections. Plaintiff argues that the Director is the sole supervisor
over all of the agents who acted under his supervision, including the movants. Doc.
no. 40, p. 4.
The court has carefully considered these arguments along with plaintiff’s
other reasons for objecting to the Report. Having done so, the court agrees with the
Magistrate Judge’s recommendation, which is based on established legal principles:
an amended complaint supersedes the original complaint, and a complaint that does
not identify certain people or entities as defendants does not state a claim for relief
against those people or entities.
The amended complaint fails to state a claim against the movants.
Accordingly, the motion to dismiss filed by Joe M. Allbaugh, Carl Bear, Donna
Blackman, Kelley Brown, Misty Edwards and Lonnie Lawson is GRANTED. Doc.
no. 31. As recommended in the Report, these movants are DISMISSED from this
action without prejudice.
3. Order Does Not End the Referral
This action remains referred to the Magistrate Judge.
IT IS SO ORDERED this 1st day of October, 2018.

18-0282p002.docx

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