Scott v. Hormel et al

Filing 43

ORDER granting in part and denying in part 26 Motion to Dismiss; adopting Report and Recommendations re 34 Report and Recommendation. Signed by Honorable Scott L. Palk on 8/20/2019. (md)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BRIAN TYRONE SCOTT,
Plaintiff,
v.
BETSY HORMEL,
KELLI CURRY,
JASON BRYANT, and
JOE ALLBAUGH,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-18-395-SLP

ORDER
On September 13, 2018, United States Magistrate Judge Gary M. Purcell issued a
Second Supplemental Report and Recommendation [Doc. No. 34] in this action brought
pursuant to 28 U.S.C. § 1983. Judge Purcell recommended that Defendants’ Motion to
Dismiss [Doc. No. 26] be granted in part and denied in part. Specifically, Judge Purcell
recommended that all claims brought by Plaintiff against Defendants be dismissed except
for Plaintiff’s Eighth Amendment claim seeking (i) monetary damages from Defendants
Betsy Hormel and Kelli Curry in their individual capacities and (ii) prospective injunctive
relief from the same defendants. See R&R 18, Doc. No. 34. Plaintiff filed his Objection
[Doc. No. 35] to the Report and Recommendation. Defendants likewise filed their
Objection [Doc. No. 37] to the Report and Recommendation.
Plaintiff’s and Defendants’ Objections both generally re-urge the arguments they
previously made and which Judge Purcell considered and rejected in issuing the Report
and Recommendation. The Court concurs fully with Judge Purcell’s resolution of the

parties’ arguments. As to Defendants’ objections to Judge Purcell’s R&R, the Court agrees
with the R&R’s determination regarding what facts have been established and which have
not at this point. While some of the arguments asserted by Defendants Betsy Hormel and
Kelli Curry might ultimately prevail with additional evidence and support (e.g., via
summary judgment motion), the Court concludes that Judge Purcell’s treatment of these
arguments is proper based on the stage at which this case is located currently and the
relevant standard of decision for a motion to dismiss. See Thomas v. Kaven, 765 F.3d 1183,
1188 (10th Cir. 2014). For the same reason, Defendants’ reliance on Sloan v. McCoy is
misplaced. See No. CIV-10-387-D, 2010 WL 4876026 (W.D. Okla. Nov. 23, 2010).
There, Judge DeGiusti adopted the report and recommendation of Magistrate Judge Couch
which addressed an Eighth Amendment claim similar to that asserted by Plaintiff—at the
summary judgment stage. See id. at *1 (adopting report & recommendation, 2010 WL
4923925 (W.D. Okla. Oct. 27, 2010)). The summary judgment record in Sloan appears to
have been substantially more developed than the motion-to-dismiss record of this case.
Defendants rely on factual assertions which have not been established by the record before
the Court and cannot be assumed by the Court in evaluating a Rule 12(b)(6) motion.
Therefore, upon de novo review1 of Defendants’ Motion to Dismiss [Doc. No. 26],
Plaintiff’s Response [Doc. No. 28], Defendants’ Reply [Doc. No. 33], Judge Purcell’s
Report and Recommendation [Doc. No. 34], Plaintiff’s Objection [Doc. No. 35], and
Defendants’ Objection [Doc. No. 37], the Court:
1

See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to. . . .”).
2

(1)

ADOPTS the Report and Recommendation [Doc. No. 34] issued by Judge

Purcell;
(2)

DENIES Plaintiff’s Objection [Doc. No. 35] to Judge Purcell’s Report and

Recommendation for the reasons stated in Judge Purcell’s Report and
Recommendation [Doc. No. 34];2
(3)

DENIES Defendants’ Objection [Doc. No. 37] to Judge Purcell’s Report and

Recommendation for the reasons stated in Judge Purcell’s Report and
Recommendation [Doc. No. 34];
(4)

GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss

[Doc. No. 26];
(5)

DISMISSES Plaintiff’s claims against Defendants Jason Bryant and Joe

Allbaugh in their official capacities without prejudice;
(6)

DISMISSES Plaintiff’s claims against Defendants Jason Bryant and Joe

Allbaugh in their individual capacities without prejudice; and
(7)

DISMISSES Plaintiff’s claims seeking monetary damages from Defendants

Betsy Hormel and Kelli Curry in their official capacities without prejudice.

2

To the extent Plaintiff includes new factual allegations in his Objection, the new
allegations are not determinative of whether Plaintiff adequately stated claims in his
Complaint. See Chambliss v. Bank of Am., N.A., No. 3:12-955, 2014 WL 1287467, at *1
(M.D. Tenn. Mar. 31, 2014) (“Plaintiffs may not amend their Complaint by adding factual
allegations as a part of objections to an R & R, or in opposition to a motion to dismiss.”
(collecting cases)). Plaintiff has not requested leave to file an amended complaint.
3

IT IS SO ORDERED this 20th day of August, 2019.

4