Opinion
Case No. CIV-18-36-SLP
11-09-2018
RAUSHI TEAREZ TURNER, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF OKLAHOMA, et al., Defendants.
REPORT AND RECOMMENDATION
Raushi Tearez Turner, a state prisoner appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983, alleging a violation of his constitutional rights. This matter has been referred to the undersigned magistrate judge for preliminary review, and submission of proposed findings and recommendations as to dispositive matters referenced in 28 U.S.C. § 636(b)(1)(B) and (C). Before the Court is a motion to dismiss third amended complaint filed on behalf of the Board of County Commissioners of Oklahoma County (Board) (ECF No. 32) and a motion to dismiss third amended complaint filed on behalf of the Oklahoma County Detention Center (OCDC) (ECF No. 33). For the following reasons, it is recommended that the motions be GRANTED.
I. PROCEDURAL BACKGROUND
Plaintiff's third Amended Complaint (ECF No. 30), brought in part pursuant to 42 U.S.C. § 1983, asserts his right to due process was violated during his incarceration as a pretrial detainee in OCDC.
Plaintiff initiated this action by filing a petition in the District Court of Oklahoma County, Oklahoma (ECF No. 1-3). In his petition, he named former Oklahoma County Sheriff John Whetsel, Deputy Scott and OCDC as defendants. Id. The petition alleged that another inmate had stabbed Plaintiff in October 2015. According to Plaintiff, Deputy Scott had observed an escalating argument between Plaintiff and the other inmate, both pretrial detainees at the time, but failed to report the incident or alert the special response team of the danger. Plaintiff contends Deputy Scott was deliberately indifferent to Plaintiff's risk of serious harm and failed in his duty to protect Plaintiff.
Plaintiff secured counsel to represent him, and on December 22, 2017, counsel filed an amended petition in the Oklahoma County District Court naming the Oklahoma County Board of Commissioners ex rel. Oklahoma County Detention Center as the sole defendant. (ECF No. 1-1). The amended petition asserted that the Board was responsible for inmate safety at OCDC and that the Board was liable for the deliberate indifference of an OCDC employee who violated Plaintiff's Fourteenth Amendment right to due process by failing to protect him. Plaintiff recounted the incident during which he was stabbed as the basis for his claim. (ECF No. 1-1:6). As relief, Plaintiff sought only monetary damages under 42 U.S.C. § 1983.
The Board removed the action to this Court on January 12, 2018, and filed a motion to dismiss the first amended complaint on January 12, 2018. (ECF No. 3). On February 2, 2018, Plaintiff filed a second amended complaint in which he renamed the Board along with Whetsel and Scott and added a state law claim of intentional infliction of emotional distress. (ECF No. 6). Both the Board and OCDC filed motions to dismiss the second amended complaint. (ECF Nos. 8, 9). Plaintiff responded to the Board's motion, (ECF No. 10), but he did not respond to OCDC's motion.
This Court found Plaintiff's claim against the Board to be barred by the applicable statute of limitations and dismissed those claims with prejudice. (ECF No. 12:3). Because Plaintiff had failed to respond to OCDC's motion to dismiss, this Court found the OCDC's motion confessed under the local rules of this Court and noted that OCDC is not a suable entity. (ECF No. 12:3, n. 2). This Court dismissed the constitutional claims. Because all federal claims against the Board and OCDC had been dismissed, this Court declined to exercise jurisdiction over the state law claim. (ECF No. 12:4-5). Plaintiff's attorneys withdrew, and this case was referred to this magistrate judge for further proceedings.
Plaintiff filed a third amended complaint (ECF No. 30) on September 17, 2018, renaming all defendants originally included in his state court petition: the Board, OCDC, Whetsel and Scott. On September 27, 2018, Defendant Board filed a motion to dismiss the third amended complaint (ECF No. 32) as did Defendant OCDC. (ECF No. 33). Curiously, both parties have included the unnecessary denomination of "Special Appearance" in the title of their motions despite having been informed by this Court that adoption of Fed. R. Civ. P. 12 eliminated the distinction between general and special appearances. See ECF No. 12:3, n. 1 (citing 5B C. Wright & A. Miller, Federal Practice and Procedure § 1344, at 30 (3d ed. 2004) (technical distinctions between general and special appearances abolished; no end accomplished by retaining or using terms in federal practice.)).
Plaintiff has filed his Response (ECF No. 39) to the Board's Motion (ECF No. 32), but has not responded to the OCDC's Motion (ECF No. 33).
II. ANALYSIS
A. The Board's Motion to Dismiss
After a protracted, unnecessary recitation of Plaintiff's criminal history, the Board asserted that Plaintiff's claims should be dismissed under the doctrine of res judicata. (ECF No. 32:12-13).
As noted above, this Court previously dismissed the claims against the Board with prejudice as barred by the applicable statute of limitations. (ECF No. 12:3).
Res judicata generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or issues that could have been raised in the earlier action. A claim is barred by res judicata when the prior action involved identical claims and the same parties or their privies.Frandsen v. Westinghouse Corp., 46 F.3d 975, 978 (10th Cir. 1995) (citation omitted). The Tenth Circuit's definition of "res judicata" in Frandsen, however, begs the question as to the preclusive effect of an interim order dismissing claims against a party based on the applicable statute of limitations. But the Supreme Court has answered that question.
The Court has held that Fed. R. Civ. P 42(b) in effect makes a "dismissal with prejudice" on statute of limitations grounds a "dismissal on the merits," at least for purposes of preventing a litigant from filing the same claim against the same party in the same federal district court. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06 (2001). In Semteck, the Court considered the preclusive effect of the judgment entered by a California federal district court dismissing with prejudice Semtek's claims because the action was untimely under California's statute of limitations. The Court ultimately held the district court's ruling did not preclude the plaintiff from bringing the identical action in a different court in a state with a longer limitations period that had not yet expired.
But the Court also explained what the preclusive effect of a dismissal "with prejudice" actually means and why:
[T]he effect of the "adjudication upon the merits" default provision of Rule 41(b)—and, presumably, of the explicit order in the present case that used the language of that default provision—is simply that, unlike a dismissal "without prejudice" the dismissal in the present case barred refiling of the same claim in the United States District Court for the Central District of California.Id. at 506. See also 18 Wright & Miller § 4435, at 329, n. 4 ("Both parts of Rule 41 . . . use the phrase 'without prejudice' as a contrast to adjudication on the merits"); 9 id., § 2373, at 396, n. 4 ("'[W]ith prejudice' is an acceptable form of shorthand for 'an adjudication upon the merits'").
For these reasons, the Board's motion to dismiss Plaintiff's third amended complaint (ECF No. 32) should be granted, and the claims should be dismissed with prejudice. If all federal claims against the Board are dismissed, it is recommended that this Court decline to exercise its pendent jurisdiction over Plaintiff's state law claim for intentional infliction of emotional distress as to this defendant.
B. OCDC's Motion to Dismiss
It is further recommended that OCDC's motion to dismiss be granted. Rule 17(b) of the Federal Rules of Civil Procedure provides that a non-corporate entity's capacity to be sued is determined by the law of the state in which the district court is located. A county jail in Oklahoma, as a subdivision of the county in which it is located, has no separate legal identity under Oklahoma law. Thus, the OCDC is not amenable to suit in this Court, and any claims against it should be dismissed with prejudice. Lindsey v. Thomson, No. 06-7114, 2007 WL 2693970 at *3 (10th Cir. Sept. 10, 2007) (affirming dismissal of § 1983 claims against police department and county sheriff's department because they are entities with no apparent legal existence); see e.g. White v. Utah, No. 00-4109, 2001 WL 201980 at *1 (10th Cir. March 1, 2001) (affirming dismissal of county jail because no state law supported directing a cause of action directly against a county's subdivisions, including its jails). For these reasons, it is recommended that Plaintiff's claims against OCDC be dismissed with prejudice.
RECOMMENDATION
It is recommended that the motion to dismiss Plaintiff's third amended complaint filed by the Oklahoma County Board of County Commissioners (ECF No. 32) be GRANTED and Plaintiff claims against the Board be DISMISSED with prejudice as untimely. Upon dismissal of Plaintiff's federal claims against the Board, it is further recommended that the court decline to exercise its supplemental jurisdiction over Plaintiff's state court claim of intentional infliction of emotional distress.
It is further recommended that the motion to dismiss Plaintiff's third amended complaint filed by the Oklahoma County Detention Center (ECF No. 33) be GRANTED and Plaintiff's claims be DISMISSED with prejudice, as OCDC is a political subdivision of Oklahoma County not amenable to suit.
NOTICE OF RIGHT TO OBJECT
Plaintiff is hereby advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 27, 2018 in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
STATUS OF THE REFERRAL
This Report and Recommendation does not dispose of all issues referred to the undersigned magistrate judge in the captioned matter.
ENTERED on November 9, 2018.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE