Opinion
CIV-22-399-R
03-05-2024
MICHAEL A. CAMPBELL, Plaintiff, v. WILLIAM MONDAY et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael A. Campbell, appearing pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging civil rights violations. (ECF No. 25). Currently before the Court are two Motions to Dismiss filed by Defendants Monday, Williams, and the Oklahoma County Criminal Justice Authority (OCCJA), which have been responded to by Mr. Campbell. (ECF Nos. 60, 61, 68, & 69). Following the Court's prior ruling, the following claims remain against these Defendants: (1) claims for deliberate indifference in violation of the Fourteenth Amendment against the OCCJA and Defendants Monday and Williams in their individual capacities for monetary damages and in their official capacities for injunctive relief and (2) claims for negligence under Oklahoma state law against Defendants Monday and Williams. See ECF Nos. 64:13, n. 14 & 71.
Following a review of the Motions to Dismiss and Plaintiff's responses, the Court should: (1) dismiss the official capacity claims against Defendants Monday and Williams as legally redundant and based on Plaintiff's wish to dismiss said claims; (2) quash the original service attempt on Defendants Monday and Williams in their individual capacity claims; (3) allow Mr. Campbell 30 days to effectuate proper service on Defendants Monday and Williams in their individual capacities or risk dismissal of the claims against these Defendants; (4) conclude that Plaintiff has stated a claim against the OCCJA under a theory of municipal liability for deliberate indifference to Plaintiff's serious medical needs in violation of the Fourteenth Amendment; and (5) make no finding on Plaintiff's state law negligence claims at this time.
I. STANDARD OF REVIEW FOR MOTIONS TO DISMISS
In ruling on Defendants' motions, the court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to . . . [P]laintiff.” Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014) (citation omitted). To survive dismissal, Plaintiff's “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,” then the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility....” Iqbal, 556 U.S. at 662 (internal quotation marks and citation omitted).
A complaint fails to state a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. (footnote and citation omitted). Bare legal conclusions in a complaint are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Iqbal, 556 U.S. at 662.
“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
II. THE MOTION TO DISMISS FILED BY DEFENDANTS OCCJA AND MONDAY AND WILLIAMS IN THEIR OFFICIAL CAPACITIES
Defendants OCCJA, Monday, and Williams, in their official capacities, have filed a Motion to Dismiss, arguing three theories: (1) improper service; (2) redundancy of claims against the OCCJA and Defendants Monday and Williams in their official capacities; and (3) failure to state a claim for violation of the Fourteenth Amendment. (ECF No. 60). The Court should: (1) dismiss the claims against Defendants Monday and Williams in their official capacities as redundant and based on Plaintiff's request to dismiss the same; (2) conclude that Defendant OCCJA was properly served; and (3) conclude that Plaintiff has stated a claim against Defendant OCCJA for deliberate indifference to Plaintiff's serious medical needs in violation of the Fourteenth Amendment based on a theory of municipal liability.
A. Redundancy of Claims/Plaintiff's Response
Claims brought against individual municipal employees sued in their official capacities are considered to be claims for municipal liability against the county; therefore, the results of suing the individual defendants in their official capacities are the same as suing the county. Porro v. Barne., 624 F.3d 1322, 1328 (10th Cir. 2010) ('“Suing individual defendants in their official capacities under § 1983 ... is essentially another way of pleading an action against the county or municipality they represent.”); Martinez v. Begg, 563 F.3d 1082, 1091 (10th Cir. 2009) ("To the extent [plaintiff] brings a claim against [the sheriff] in his official capacity, it is the same as bringing a suit against the county.”); see also Kentucky v. Graham, 473 U.S. 159, 165-66, 167, n. 14 (1985) (holding that an official capacity "suit is, in all respects other than name, to be treated as a suit against the entity;” holding that "[t]here is no longer a need to bring official-capacity actions against local government officials [because] local government units can be sued directly”).
Plaintiff has asserted municipal liability claims against Oklahoma County by suing the OCCJA. Thus, Mr. Campbell's official capacity claims against Defendants Monday and Williams, former Oklahoma County employees, should be dismissed as redundant. See Parks v. Board of Cnty. Commissioners of Oklahoma Cnty., No. CIV-20-205-D, 2021 WL 9274560, at *3-4 (W.D. Okla. Apr. 23, 2021) (dismissing official capacity claims against county officials as redundant when a claim for municipal liability against the county exists); Espinosa Hernandez v. Bd. of Cty. Commissioners of Oklahoma Cty., 2019 WL 3069430, at *2 (W.D. Okla. July 12, 2019) ('“Plaintiff sued both the Board of County Commissioners and Sheriff Whetsel in his official capacity.... [T]he official capacity claim against Defendant Whetsel is a claim against Oklahoma County, and therefore is redundant.”). Furthermore, in his response, Mr. Campbell states that he "elects[s] to drop his "Official capacity” claims against Defendant Williams and Monday.” (ECF No. 68:2). Accordingly, and based on either the Defendants' theory or Plaintiff's request, the Court should dismiss the official capacity claims against Defendants Monday and Williams.
B. Service
With the forgoing recommendation, and as is pertinent to this Motion to Dismiss (ECF No. 60), the sole remaining Defendant is the OCCJA, which argues that dismissal is appropriate due to improper service. See ECF No. 60:2-3. The Court should reject this argument, based on statements in Defendant OCCJA's own motion.
Defendant OCCJA identifies as a "public trust and a political subdivision of the State of Oklahoma.” (ECF No. 60:2) (citing 51 O.S. § 152(11)(d); 60 O.S. § 176, et seq.). Accordingly, the OCCJA rightfully argues that service is governed by Federal Rule of Civil Procedure 4(j)(2), which provides:
(2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:
(A) delivering a copy of the summons and of the complaint to its chief executive officer; or
(B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.Oklahoma law, in turn, provides that a public trust must be served “by delivering a copy of the summons and of the petition to . . . the chief executive officer or a clerk, secretary or other official whose duty it is to maintain the official records of the organization.” 12 O.S. § 2004(C)(1)(c)(5).
The return of summons executed on the OCCJA states that Tony Towery, Chief of Operations, accepted service on behalf of the OCCJA. See ECF No. 57. According to the OCCJA, “Mr. Towery is the official whose duty it is to maintain the official records of the OCCJA.” (ECF No. 60:3). Thus, service on the OCCJA, through Mr. Towery, was considered proper under Federal Rule of Civil Procedure 4(j)(2) and 12 O.S. § 2004(C)(1)(c)(5).
C. Deliberate Indifference
The sole claim remaining against the OCCJA is Plaintiff's claim for deliberate indifference to his serious medical needs in violation of the Fourteenth Amendment based on a theory of municipal liability. See ECF No. 25:10-11, 13. The OCCJA argues that Plaintiff has failed to allege facts which would state a plausible municipal liability claim under the Fourteenth Amendment. (ECF No. 60:4-11). The Court should disagree.
1. Standard for Municipal Liability
In Monel v. New York City Dept of Social Servs., 436 U.S. 658, 690 (1978), the Supreme Court explained that a municipality or other local government unit may not be held liable under § 1983 solely because it employs a tortfeasor. Monel v. New York City Dept of SocialServs., 436 U.S. 658, 691 (1978). Rather, "to prove a § 1983 claim against a municipality, a plaintiff must show the existence of a municipal policy or custom which directly caused the alleged injury.” Pyle v. Wood, 874 F.3d 1257, 1266 (10th Cir. 2017) (citing City of Canton, Ohio v. Harri, 489 U.S. 378, 385 (1989)). Additionally, a plaintiff must “show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep', 717 F.3d 760, 769 (10th Cir. 2013) (citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997); City of Canton, 489 U.S. at 389). Accordingly, to prevail on a § 1983 claim against municipal defendants, “the plaintiff must prove '(1) official policy or custom, (2) causation, and (3) state of mind.' ” Burke v. Regalad, 935 F.3d 960, 998 (10th Cir. 2019) (bracket omitted) (quoting Schneide, 717 F.3d at 769).
a. Official Policy or Custom
To establish a claim under § 1983, a plaintiff must first identify an official policy or custom of the municipality, whether enacted or maintained by its legislative body or an authorized decisionmaker. Schneide, 717 F.3d at 769-70. A plaintiff must demonstrate the existence of a “municipal policy or custom” in one of the following forms:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions - and the basis for them - of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.
b. Causation
After identifying such an official policy or custom, the plaintiff must then establish that the policy or custom either: (1) directly violated a federal right of the plaintiff, or (2) was the “moving force” behind a county employee's violation of a federal right of the plaintiff. Hinkle v. Beckham Cnty. Bd. of Cnty. Comm'r, 962 F.3d 1204, 1240 (10th Cir. 2020). “Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Id. at 1241.
c. State of Mind
Finally, Plaintiff must prove that the municipal action was taken with deliberate indifference to its known or obvious consequences. Id. "The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.” Waller v. City & Cnty. of Denve, 932 F.3d 1277, 1284 (10th Cir. 2019) (citation omitted). "While typically notice is ‘established by proving the existence of a pattern of tortious conduct,' it can also be established 'in a narrow range of circumstances where a violation of federal rights is a highly predictable or plainly obvious consequence of a municipality's action or inaction.' ” Hinkl, 962 F.3d at 1241 (quoting Wale, 932 F.3d at 1284).
2. Plaintiff's Deliberate Indifference Claim Against the OCCJA
Previously, the Court concluded that Mr. Campbell had stated a claim against Defendant Capehart, in his individual capacity, for delaying and denying Plaintiff's pain medication. See ECF No. 71. The Court also concluded that Mr. Campbell had stated a claim against Defendant Winchester, in his individual capacity, for deliberate indifference to Plaintiff's serious medical needs, by refusing to: (1) schedule Plaintiff's hip surgery and (2) prescribe more potent pain medication. (ECF No. 71:5-6).
Defendant OCCJA argues that “the Amended Complaint fails to identify and [sic] act or omission by either Defendant [Monday or Williams] that is affirmatively linked to a policy or custom of the OCCJA that is the moving force behind his alleged constitutional injury.” (ECF No. 60:7). But Plaintiff's theory of municipal liability against the OCCJA is premised on that entity being responsible for enacting a policy or custom responsible for the actions of Defendants Capehart and Winchester.
a. Defendant Capehart
In the Amended Complaint, Plaintiff alleges that on April 26, 2022, Defendant Capehart came to Plaintiff's cell to deliver medication at approximately midnight, which was approximately 7 hours late. (ECF No. 25:9- 10). Mr. Campbell alleges that due to the delay, his pain “was so severe that [he] could not lift [himself] out of the bed” to walk to the cell door to receive his medication. (ECF No. 25:10). Plaintiff also alleges that Defendant Capehart “stood in the doorway with [Plaintiff's] medication in his hands and told [Plaintiff] to get up or no meds.” (ECF No. 25:10). According to Plaintiff, Defendant Capehart “laughed and joked as [Plaintiff] laid there in severe pain” before walking off. (ECF No. 25:10, 20). As stated, these allegations state a claim for relief against Defendant Capehart in his individual capacity. See supra. Mr. Campbell attributes Defendant Capehart's actions to policies and/or customs created by the OCCJA:
Criminal Justice Authority[] . . .is responsible though their official policies, and informal customs amounting to a widespread practice of “negligence” and “deliberate indifferent” to my serious medical need through their customs of not providing health care to pre-trial detainee, bed stricken with pain and “policy” will not allow the pill call LNU's to step inside a cell (2 ft) to pass a bedstricken w/pain inmate his medication. ... therefore, the inmate is forced to lay in his cell in pain, while the med pass nurse, standing 2 ft, away refuse to give the inmate his/her medication that s/he is holding in their hand.
...
On March 12, 2022 @5:47 I experienced extreme severe pain and I call for help and my cellmate called for me also, and [ ] the common practice is that they tell (me) the inmates that they will send medical help, but they easily get distracted with another matter and no one from medical never come until you die or nearly die. After several consecutive phone calls, they will finally answer and (I) the inmate will remind them and all they say is: “My bad, I'll call medical anow for you and still no one will ever come help. On March 31st, 2022, and also in Feb. and May 2022, I made several emergency phone calls on the wall phone in my call #13-D-22 with the exact same results as I experienced 03/12/2022.(ECF No. 25:10, 11).
Elsewhere in the Amended Complaint, Mr. Campbell again refers to:
The Jail Trust's Policies of inadequate training and their inadequate supervision; and their unprofessional employees, as a lack of supervision, continue to adhere to unconstitutional customs & practices of “negligence and deliberate indifference to my [pre-trial detainee] serious medical needs.” Their refusal to give the inmates their pain medication as they stand 2 steps away watching the inmate in pain begging for help, holding the medication in their hand . . . then telling the inmate: “get up & walk over here or you will not receive your medication.”(ECF No. 25:13).
And finally, in the response to Defendant OCCJA's Motion to Dismiss, Plaintiff also states:
According to Defendant Capehart: “Due to Safety reasons he could not walk Plaintiff's medications to him in his cell due to (OCCJA) “Jail Policy.”
...
Mr. Capehart never articulated the title of the policy he was making reference unto, which disenabled the Plaintiff from articulating the policy Mr. Capehart was referring to. It is a policy that was adhered until then & still is now.
Mr. Capehart and whatever policy was/is the moving force behind the constitutional violation that the Plaintiff suffered. Mr. Capehart personally admitted jail policy was the moving force being denying treatment to Plaintiff's serious medical needs. It is a fact that OCDC & OCCJA is liable for violating 42 U.S.C. § 1983 when Othella Capehart & Dr. Winchester executed either or both: “Jail Policy /Turn Key Health's Policy.”(ECF No. 68:8-9) (internal citations omitted). Mr. Campbell further attributes Defendant Capehart's actions to OCCJA's failure to properly train its employees. See ECF No. 25:1011 (“As a result of [the OCCJA's] staff members and their emergency medical telephone wall speaker operators are not properly nor adequately trained to respect nor respond to “the serious medical needs of inmates” . . .Their policy and policy makers allow anyone, untrained person off the streets, to be hired today and be operating the emergency phone system tomorrow or the following week, with no training.”).
b. Defendant Winchester
As to Defendant Winchester, in the Amended Complaint, Plaintiff stated that Dr. Winchester had told him that he was not allowed to provide the type of pain medication that he, the physician, believed Plaintiff needed; specifically that it was “not authorized in this institution.” (ECF No. 25:7, 13). And in his response to the OCCJA's Motion to Dismiss, Mr. Campbell states that Dr. Winchester's position on prescribing a higher level of pain medication was premised on the fact that “Policy would not allow him to prescribe Plaintiff nothing stronger than aspirin.” (ECF No. 68:6).
c. Plaintiff has Stated a Claim for Deliberate Indifference Against Defendant OCCJA
Mr. Campbell has alleged that the OCCJA maintained policies and/or customs and/or practices of: (1) failing to adequately train their employees to respond to inmate's medical requests via a wall speakerphone, (2) not allowing certain levels of pain medication to be prescribed, and (3) not allowing “pill call” nurses to step into an inmate's cell to give him medication. According to Mr. Campbell, these policies/customs/practices resulted in: (1) a delay of Plaintiff receiving his medication, (2) a denial of Plaintiff's medication because he was too sick to get out of bed to receive it, and (3) a lack of the type of pain medication he received being inadequate. Finally, Plaintiff has adequately alleged that the actions were taken with deliberate indifference-i.e.-that the OCCJA is responsible through the aforementioned policies which have become customary at the jail. See ECF No. 25:13.
Based on the forgoing, the Court should conclude that Plaintiff has stated a claim, based on a theory of municipal liability, against the OCCJA, for deliberate indifference to his serious medical needs in violation of the Fourteenth Amendment.
III. THE MOTION TO DISMISS FILED BY DEFENDANTS MONDAY AND WILLIAMS IN THEIR INDIVIDUAL CAPACITIES
Defendants Monday and Williams, in their individual capacities, have filed a Motion to Dismiss, arguing three theories: (1) improper service; (2) failure to state a claim for violation of the Fourteenth Amendment and (3) qualified immunity. (ECF No. 61). The Court should agree that Defendants Monday and Williams were not properly served. On that basis, the Court should quash the original service and allow Plaintiff an opportunity to effectuate proper service on these Defendants.
Personal service under Rule 4 of the Federal Rules of Civil Procedure "notif[ies] a defendant of the commencement of an action against him.” Okla. Radio Assocs. v. Fed. Deposit Ins. Corp., 969 F.2d 940, 943 (10th Cir. 1992). Further, such service "provides the mechanism” for the court to “assert[ ] jurisdiction over the person of the party served.” Id.; see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51 (1999). A Rule 12(b)(5) motion challenges the plaintiff's mode of serving process on the moving party. Craig v. City of Hobar, No. CIV-09-53-C, 2010 WL 680857, at *1 (W.D. Okla. Feb. 24, 2010) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1353 (3d ed. 2004)). In opposing a Rule 12(b)(5) motion, the plaintiff bears the burden of showing that he or she "complied with all statutory and due process requirements.” Id. "Motions under Federal Rules 12(b)(4) and 12(b)(5) differ from the other motions permitted by Rule 12(b) somewhat in that they offer the district court a course of action-quashing the process without dismissing the action-other than simply dismissing the case when the defendant's defense or objection is sustained.” 5B Wright & Miller, supra, § 1354; accord Gray v. Ritte, No. CIV-09-909-F, 2010 WL 4880890, at *2 (W.D. Okla. Oct. 8, 2010).
Pursuant to Federal Rule of Civil Procedure 4(e)(1), service may be made upon an individual within a judicial district of the United States by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). Oklahoma relies on a three-part test regarding sufficiency of service of process: “ '(1) Is there a statute authorizing the method of service employed?; (2) Have the requirements of the statute been observed?; and (3) Have fundamental due process requirements been met?' ” Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 799 (10th Cir. 2008) (citation omitted).
Under the first prong, service of process in Oklahoma is governed by OKLA. STAT. tit. 12, § 2004. For service by personal delivery upon an individual, Oklahoma law provides that service shall be made as follows:
upon an individual other than an infant who is less than fifteen (15) years of age or an incompetent person, by delivering a copy of the summons and of the petition personally or by leaving copies thereof at the person's dwelling house or usual place of abode with some person then residing therein who is fifteen (15) years of age or older, by delivering a copy of the summons and of the petition to an agent authorized by appointment or by law to receive service of process, or by delivering a copy of the summons and of the petition personally or by leaving copies thereof at an agreed meeting place with some person then residing at the person's dwelling house or usual place of abode[.]12 O.S. § 2004(C)(1)(c)(1). The inquiry thus turns to whether Mr. Campbell observed the requirements of 12 O.S. § 2004 when serving Defendants Monday and Williams, in their individual capacities.
On December 6, 2022, “Devin Resides, General Counsel” accepted service for Defendants Monday and Williams. See ECF No. 35:4-5. Defendants Monday and William contend that Mr. Resides is not an authorized agent for the Oklahoma County Detention Center. (ECF No. 61:4). In his Response, Plaintiff states that Defendants Monday and Williams “were evasive in accepting service of process” and “they both were very much aware that they were defendants in this matter” and Mr. Resides “exercised his authority to accept service of process on their behalf.” (ECF No. 69:1). The Court should reject Plaintiff's arguments.
First. Mr. Campbell has no proof, beyond his bare allegations, that Defendants Monday and Williams were evading service. Second, the Court is leery as to whether Messrs. Monday and Williams were “very much aware that they were defendants in this matter.” Indeed, the fact that these Defendants waited nine months to file anything in this action indicates otherwise. See ECF Nos. 60 & 61. Finally, Defendants Williams and Monday have submitted proof, in the form of affidavits, that neither of them had authorized Mr. Resides to accept service on their behalf and they were not aware that they had been named in the lawsuit or that service had been attempted. See ECF Nos. 61-1 & 61-2.
Substantial compliance is the proper rule for service of process in Oklahoma. See Habyarimana v. Kagam, 821 F.Supp.2d 1244, 1252 (W.D. Okla. 2011), aff', 696 F.3d 1029 (10th Cir. 2012). The relevant inquiry, therefore, is whether Plaintiff substantially complied with the requirements set forth in OKLA. STAT. tit. 12, § 2004. Based on the forgoing, the Court should answer this question in the negative. The statute allowed Plaintiff to serve Defendants Monday and Williams through personal delivery or certified mail. See OKLA. STAT. tit. 12, § 2004. Plaintiff attempted personal service, but instead of serving the Defendants at his dwelling or usual place of abode, he served General Counsel for the Oklahoma County Detention Center. Plaintiff provides no factual support that this individual was an agent authorized by law to accept service on behalf of Defendants Monday or Williams. Thus, the attempted service on these Defendants was defective.
Motions under Rule 12(b)(5) offer the district court the option of quashing the improper service of process without dismissing the action. See Pendleton v. Bd. of Cnty. Commissioners for Okla. Cnty., No. CIV-18-707-G, 2019 WL 4752269, at *2 (W.D. Okla. Sept. 30, 2019); accord Gray v. Ritte, No. CIV-09-909-F, 2010 WL 4880890, at *2 (W.D. Okla. Oct. 8, 2010); Lasky v. Lansfor, 76 Fed.Appx. 240, 241 (10th Cir. 2003); 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1354 (3d ed.2010). Here, there is no indication that Plaintiff cannot properly serve Defendants Monday and Williams. Thus, the Court should quash the original service, and Plaintiff should effectuate proper service on these Defendants within thirty (30) days of this Order. If Plaintiff fails to effectuate service within this period, this case will be dismissed without prejudice as to these defendants. At this time, and because of the pending service matter, the Court should abstain from making any finding on Plaintiff's state law negligence claims against Defendants Monday and Williams.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the forgoing, the Court should: (1) dismiss the official capacity claims against Defendants Monday and Williams as legally redundant and based on Plaintiff's wish to dismiss said claims; (2) quash the original service attempt on Defendants Monday and Williams in their individual capacity claims; (3) allow Mr. Campbell 30 days to effectuate proper service on Defendants Monday and Williams in their individual capacities or risk dismissal of the claims against these Defendants; (4) conclude that Plaintiff has stated a claim against the OCCJA under a theory of municipal liability for deliberate indifference to Plaintiff's serious medical needs in violation of the Fourteenth Amendment; and (5) make no finding on Plaintiff's state law negligence claim at this time.
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by March 22, 2024. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF THE REFERRAL
This Report and Recommendation does not dispose of all issues currently referred to the undersigned magistrate judge in the captioned matter.