Oliver v. Nielson et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 38 Report and Recommendations; denying 28 Motion to Amend Second Amended Complaint; granting 31 Motion to Dismiss Second Amended Complaint on Behalf of Defendants Nielson, Richardson, Peters, Fielding, and County Entities. Signed by Judge Jill N. Parrish on 4/5/2018. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
D. BRUCE OLIVER,
Plaintiff,

ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
DEPUTY LARRY G. NIELSON, et al.,
Defendants.

Case No. 1:16-cv-00155
District Judge Jill N. Parrish

I.

BACKGROUND

On June 27, 2016, Plaintiff D. Bruce Oliver 1 initiated this action by filing a handwritten
complaint in the Second District Court for Davis County, Utah. ECF No. 2-1 at 2–9 (Mr.
Oliver’s Initial Complaint). Mr. Oliver amended his complaint once while the case was pending
in state court and alleged causes of action for: (1) unlawful search and seizure of Mr. Oliver, (2)
unlawful search and seizure of Mr. Oliver’s property, and (3) an injunction. First Am. Compl.
¶¶ 23–32, ECF No. 2-1 at 21–22 (Mr. Oliver’s First Amended Complaint). Defendants removed
the action to federal court on October 28, 2016. ECF No. 2 (Notice of Removal).
On February 9, 2017, Defendants filed a Rule 12(c) Motion for Judgment on the
Pleadings (ECF No. 7). Mr. Oliver, in response to the Defendants’ motion, requested leave to
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Mr. Oliver was admitted to practice law in the State of Utah in 1987. His license was
suspended, and he was publically reprimanded. See Comm. on the Conduct of Attorneys v.
Oliver, 510 F.3d 1219, 1224–25 (10th Cir. 2007) (“In suspending Mr. Oliver from the practice of
law, placing him on three-year probation upon readmission, requiring re-organization of his
practice, and ordering a public reprimand, the Panel did not abuse its discretion.”); In re
Discipline of Oliver, 254 P.3d 181, 181 (Utah 2011). Based on Mr. Oliver’s legal background, the
court does not extend to him the same leniency to which pro se litigants are usually entitled.

amend to correct a typo: he mistakenly omitted “42 U.S.C. § 1983” from his second cause of
action. ECF No. 8 at 2 (Mr. Oliver’s Objection and Response to Defendant’s [sic] Motion). After
reviewing the parties’ briefing, Magistrate Judge Brooke C. Wells issued a Report and
Recommendation (ECF No. 13) on June 8, 2017. She recommended that the court: (1) dismiss all
claims against Davis County Jail, Davis County Sheriff’s Office, Davis County, and Sheriff
Richardson; (2) dismiss Mr. Oliver’s first cause of action as to Deputy Peters and Deputy
Fielding; (3) grant Mr. Oliver leave to amend so that he could include reference to 42 U.S.C.
§ 1983; and (4) dismiss Mr. Oliver’s third cause of action for injunctive relief. ECF No. 13 at 8–
9. Mr. Oliver did not object to the Report and Recommendation, and the court adopted the
Report and Recommendation in full on July 31, 2017. ECF No. 16 at 1 (Order Adopting Report
and Recommendation).
Mr. Oliver filed his Second Amended Complaint (ECF No. 19) on August 18, 2017. Mr.
Oliver included reference to 42 U.S.C. § 1983 under his second cause of action. ECF No. 19 at 5.
But Mr. Oliver also re-asserted all of the claims that had been dismissed. ECF No. 19 at 4–5. In
short, the only change Mr. Oliver made in his Second Amended Complaint was to include a
reference to 42 U.S.C. § 1983; he did not remove claims that the court dismissed.
Mr. Oliver, on August 18, 2017, also filed what was titled: Motion to Amend Complaint
Pursuant to Rule and Motion to Alter or Ament [sic] Judgment Pursuant to Rule 59 (ECF No.
18). Mr. Oliver claimed that he never received a copy of the Report and Recommendation, and
he therefore requested that he be allowed to respond to the Report and Recommendation. ECF
No. 18 at 3. Mr. Oliver also requested leave to amend his complaint to include additional facts.
ECF No. 18 at 3. But Mr. Oliver did not attach a proposed amended complaint to his motion.

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After reviewing the parties’ briefings, Judge Wells issued a second Report and
Recommendation (ECF No. 24). She recommended that the court: (1) deny Mr. Oliver’s motion
to amend on the grounds that he did not attach a proposed amended complaint to his motion to
amend, as is required by Local Rule 15-1; and (2) deny Mr. Oliver’s motion to amend or alter
judgment on the grounds that Mr. Oliver failed to show how the court erred when it adopted the
first Report and Recommendation. ECF No. 24 at 6. Mr. Oliver did not object to the second
Report and Recommendation. The court adopted the second Report and Recommendation in full
on December 4, 2017. ECF No. 26 at 2 (Order Adopting Second Report and Recommendation).
Mr. Oliver filed a Motion to Amend Second Amended Complaint Pursuant to Rule 15
(ECF No. 28) on December 11, 2017. He attached to the motion a proposed version of his Third
Amended Complaint (ECF No. 28-1). Mr. Oliver’s proposed Third Amended Complaint adds
three new theories of liability to his first cause of action: (1) unreasonably long detention; (2)
violation of freedom of speech; and (3) violation of freedom of assembly. Third Am. Compl.
¶¶ 34–36. Defendants opposed Mr. Oliver’s motion to amend on the grounds that the motion was
untimely and amendment would be futile.
Shortly after opposing Mr. Oliver’s motion to amend, Defendants filed a Motion to
Dismiss Second Amended Complaint on Behalf of Defendants Nielson, Richardson, Peters,
Fielding, and County Entities (ECF No. 31). Defendants argued that Mr. Oliver’s Second
Amended Complaint, which he had filed to correct a typo, impermissibly re-asserted claims that
the court dismissed when it adopted the first Report and Recommendation.
Both the motion to amend and the motion to dismiss were referred to Judge Wells under
28 U.S.C. § 636(b)(1)(B). Judge Wells issued a third Report and Recommendation on March 6,
2018 (ECF No. 38). She recommends that the court: (1) deny Mr. Oliver’s motion to amend on

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the grounds that amendment would unduly prejudice Defendants and the motion to amend was
untimely (i.e., Mr. Oliver offered no adequate explanation for the delay); and (2) grant
Defendants’ motion to dismiss. ECF No. 38 at 7. Mr. Oliver objected to the third Report and
Recommendation, arguing that his motion to amend was timely and that amendment would not
unduly prejudice Defendants. ECF No. 39 at 2–5 (Mr. Oliver’s Objection to Magistrate’s Report
and Recommendation). Mr. Oliver did not object to the recommendation that the court grant
Defendants’ motion to dismiss.
II.

DISCUSSION

If a party objects to portions of a magistrate judge’s report and recommendation, the
district court reviews those portions de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); see
also In re Griego, 64 F.3d 580, 583–84 (10th Cir. 1995) (“De novo review is required when a
party files a timely written objection to the magistrate judge’s recommendation.”). “The filing of
objections to a magistrate’s report enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” United States v. One Parcel of
Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147
(1985)). As such, if neither party objects to certain portions of a report and recommendation, the
district court need only determine that there is no “clear error” with respect to those portions. See
Fed. R. Civ. P. 72(b) advisory committee’s note (1983) (citing Campbell v. U.S. Dist. Court for
N. Dist. of Cal., 501 F.2d 196, 206 (9th Cir. 1974)). 2

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The Tenth Circuit has adopted the firm-waiver rule. One Parcel of Real Prop., 73 F.3d at 1059.
Under this rule, “the failure to make timely objections to the magistrate’s findings or
recommendations waives appellate review of both factual and legal questions.” Id. (quoting
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Precluding appellate review of any
issue not raised in an objection “prevents a litigant from ‘sandbagging’ the district judge by
failing to object and then appealing.” Thomas, 474 U.S. at 147–48.
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Here, Mr. Oliver objects to third Report and Recommendation to the extent it denies
leave to amend. Specifically, Mr. Oliver contends that the three theories added to his proposed
amended complaint—unreasonably long detention, violation of freedom of speech, and violation
of freedom of assembly—were encompassed in his earlier complaints. Despite this, Mr. Oliver
does not explain why he waited over two years to move to amend his complaint to include these
theories. 3 The court therefore reviews de novo the portions of the third Report and
Recommendation that deny leave to amend and reviews the remainder of the third Report and
Recommendation for clear error. Based on the court’s review of the record, the relevant legal
authority, and the third Report and Recommendation, the court concludes that the third Report
and Recommendation is a correct application of the law to the facts. Accordingly, the court
adopts the third Report and Recommendation in full.
The court also denies Mr. Oliver’s motion to amend on the grounds that he has not shown
“good cause” to modify the Scheduling Order, as required by Rule 16(b)(4), nor has he moved to
modify the Scheduling Order. See Gorsuch Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d
1230, 1240 (10th Cir. 2014) (“After a scheduling order deadline, a party seeking leave to amend
must demonstrate (1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4) and (2)
satisfaction of the Rule 15(a) standard.”). The Scheduling Order (ECF No. 20) set November 28,
2017, as the deadline for filing motions to amend. But Mr. Oliver filed his motion for leave to
amend on December 11, 2017, twelve days after the deadline. Mr. Oliver does not address

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Mr. Oliver, in his objection to the third Report and Recommendation, states that “the delay was
2 weeks.” ECF No. 39 at 3. Presumably, Mr. Oliver is referring to the fact that Scheduling Order
(ECF No. 20) set the “Last Day to File Motion to Amend Pleadings” as November 28, 2017.
Thus, Mr. Oliver moved to amend his complaint about two weeks after the deadline for filing
motions to amend. But under Rule 15(a)(2), the relevant inquiry is whether a party unduly
delayed in moving to amend their complaint, not whether the party unduly delayed in moving to
amend the scheduling order.
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whether there is good cause to modify the Scheduling Order, and more importantly, he does not
move to modify the Scheduling Order. The typical pro se litigant may not understand the need to
modify the Scheduling Order in these circumstances, but Mr. Oliver is not the typical pro se
litigant: he appeared frequently before this court and practiced law for over nineteen years. See
Comm. on the Conduct of Attorneys v. Oliver, No. 2:06-mc-952-TS, ECF No. 30 at 12 (D. Utah
Feb. 27, 2017). Accordingly, even if Mr. Oliver satisfied the Rule 15(a) standard (he did not), the
court denies Mr. Oliver’s motion to amend on the grounds that he has not moved, let alone
shown good cause, to modify the Scheduling Order.
III.

CONCLUSION AND ORDER

For the reasons set forth above, it is HEREBY ORDERED:
1. The third Report and Recommendation (ECF No. 38) is ADOPTED IN FULL;
2. Mr. Oliver’s Motion to Amend Second Amended Complaint (ECF No. 28) is
DENIED;
3. Defendants’ Motion to Dismiss Second Amended Complaint on Behalf of
Defendants Nielson, Richardson, Peters, Fielding, and County Entities (ECF No.
31) is GRANTED;
4. Davis County Jail, Davis County Sheriff’s Office, Davis County, and Sheriff
Richardson are DISMISSED as defendants;
5. Mr. Oliver’s First Cause of Action is DISMISSED as to Deputy Peters and
Deputy Fielding; and
6. Mr. Oliver’s Third Cause of Action is DISMISSED;
7. Mr. Oliver is ORDERED to file a proposed Third Amended Complaint that
contains only the remaining defendants and causes of action in this matter, as
reflected by this order. Mr. Oliver shall have 21 days from the date of this order to
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file his proposed Third Amended Complaint. Failure to comply with this order
may result in sanctions, including dismissal of the action.

Signed April 5, 2018
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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