DiCesare v. Makinson et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JOSEPH ANGELO DICESARE, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 21-cv-231-FAB-GLJ
)
GARY MAKINSON, JOSHUA 	)
WHITNEY, OKMULGEE COUNTY 	)
DEPUTY LAWSON, CINDY 	)
STEPHENS, KRISTI D. BOYDSTON, 	)
OKMULGEE COUNTY, JOHN 	)
NEWPORT, EDDIE RICE, RON 	)
BALLARD, Okmulgee County Board of 	)
County Commissioners, R. DAVID 	)
WALKER, Okmulgee County Board of 	)
County Commissioners, JOHN 	)
CONNORS, Okmulgee County Board of 	)
County Commissioners, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s Motion to File Third Amended
Complaint [Docket No. 160] and Plaintiff’s Motion to Amend Motion to File Third
Amended Complaint [Docket No. 177]. On February 17, 2026, the Court referred this case
to the undersigned Magistrate Judge for all further proceedings in accordance with
jurisdiction pursuant to 28 U.S.C. § 636 [Docket No. 18] and subsequently specifically
referred the subject motions to the undersigned Magistrate Judge [Docket Nos. 170 & 180].
For the reasons set forth below, the undersigned Magistrate Judge finds Plaintiff’s Motion
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to File Third Amended Complaint [Docket No. 160] and Plaintiff’s Motion to Amend
Motion to File Third Amended Complaint [Docket No. 177] should be DENIED.
Background
Plaintiff, representing himself pro se, initiated this action against various Okmulgee
County Sheriff’s deputies, Okmulgee County officials and others arising out of a series of
events beginning in 2019 leading to Plaintiff’s arrest, subsequent transport to and booking
in the Okmulgee County jail, certain findings and the removal of Plaintiff’s children from
his custody by the Oklahoma Department of Human Services, the execution of a “writ of
assistance” at Plaintiff’s residence, and the subsequent attempt to serve summons in this
case on several defendants at the Okmulgee County Sheriff’s Office. See Docket No. 64.1
The Court previously rejected Plaintiff’s attempted to obtain enjoin KB Enterprises,
Kade Bailey, Kannon Baily, and Ken Baily from foreclosing on or otherwise taking his
property or evicting him from such property because they were not parties to the action and
Plaintiff did not allege they had any involvement in any of the incidences or actions giving
rise to Plaintiff’s claims in this action. See Docket No. 153.
Plaintiff now seeks to file a Third Amended Complaint to add new parties and
claims that appear to arise out of his interactions and a real estate transaction with Kannon
Baily and/or Ken Bailey. See Docket No. 160. Moreover, Plaintiff seeks to add, in addition
to Kannon and Ken Bailey, the three county commissioners on the Okmulgee County
1 The Second Amended Complaint [Docket No. 64] is the operative complaint in this case. After
its filing, the Oklahoma Department of Health and Human Services was subsequently dismissed.
See Docket No. 85.
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Board of County Commissioners, Barbara Cook, Myles Davidson and Steve Ward. 	Id.
These three Commissioners, however, after being listed as defendants are not mentioned
again in Plaintiff’s proposed Third Amended Complaint and no specific allegations are
made against them. 	Id. 	As it relates to Kannon and Ken Bailey, Plaintiff alleges that in
February 2025, Kannon Bailey helped Plaintiff pay some back taxes, presumably owed on
his residence on Gun Club Road in Okmulgee, and then Kannon somehow removed
Plaintiff’s and Plaintiff’s ex’s names off of the title, replacing their names with his own.
Id. Plaintiff further alleges that thereafter Kannon Bailey demanded $800 in monthly rent
from Plaintiff for the property and subsequently Plaintiff received a letter from Kannon
Bailey’s attorney demanding that Plaintiff vacate the premises in five days. Id. Plaintiff
recently filed an Amendment to the Motion to file Third Amended Complaint in which he
updates these events by alleging that in June 2026, Kennon Bailey wrongly obtained a
default judgment against him in a forcible entry and detainer action in the District Court of
Okmulgee County, State of Oklahoma, Case No. SC-26-143 (“Okmulgee Case”), and has
taken possession of his property. See Docket No. 177. Plaintiff also alleges Kennon Bailey
obtained a writ of assistance in the Okmulgee Case. Id.
Because Plaintiff is proceeding pro se, the undersigned Magistrate Judge liberally
construes his pleadings. 	See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)
(requiring courts to liberally construe a pro se litigant’s pleadings); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (a court construes a pro se party’s pleadings liberally and
holds them “to a less stringent standard than [that applied to] formal pleadings drafted by
lawyers.”). Although pro se pleadings are held to a less stringent standard than ones drafted
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by lawyers, the court cannot and does not act as his advocate, Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), and a pro se litigant must “‘follow the same rules of procedure
that govern other litigants.’” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).
Analysis
I. 	Plaintiff’s Failure to Follow Procedural Rules
The 	undersigned 	Magistrate 	Judge 	first 	addresses 	the 	procedural 	posture 	of
Plaintiff’s motion. 	After Plaintiff’s Motion for Protective Order was denied because it
sought injunctive relief against non-parties for matters unrelated to the case, Plaintiff
improperly filed his Third Amended Complaint attempting to add new parties and claims
to the case. 	See Docket No. 147. 	Plaintiff’s Third Amended Complaint was struck for
failing to first seek leave under Fed. R. Civ. P. 15. See Docket No. 148. Plaintiff next filed
a pleading titled “*Amendment of Pleadings**Joinder of Parties*”, which the Court
docketed and the undersigned interprets as a Motion for Leave to File Third Amended
Complaint. 	See Docket No. 160. 	Plaintiff’s proposed Third Amended Complaint,
however, does not reallege any of the allegations contained in the Second Amended
Complaint, but instead simply states that he “adopts and incorporates all jurisdiction
statutes 	listed 	in 	[the 	Second 	Amended 	Complaint]” 	and 	that 	this 	pleading 	“is 	a
continuation of [the Second Amended Complaint].” 	See Docket No. 160. 	Plaintiff’s
pleading titled “*Update: Amendment to doc.sh. #160 *Notice to *Court**”, which was
docketed as Amendment to Motion to File Third Amended Complaint, contains a recitation
of recent events that have occurred since the filing of his Motion to File Third Amended
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Complaint that Plaintiff presumably seeks to add to or be considered a part of his proposed
Third Amended Complaint.2
In general, an amended complaint ordinarily supersedes the original and renders it
of no legal effect. 	Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991).
Moreover, although Plaintiff entitled his proposed Third Amended Complaint as an
“Amendment of Pleadings”, an amended complaint that does not incorporate allegations
of the original pursuant to Fed. R. Civ. P. 10(c) is subject to dismissal. 	Fullerton v.
Maynard, 943 F.2d 57 (10th Cir. 1991) (unpublished) (upholding a dismissal of an
amended complaint that did not incorporate allegations of the original pursuant to Rule
10(c) stating that while a pro se plaintiff is entitled to have his pleadings construed liberally,
he nevertheless is subject to the same rules of procedure that govern other litigants).
Nonetheless, “pursuant to Rule 10(c), specific allegations of the prior complaint may be
referenced or incorporated by the amended complaint, but only if reference to allegations
in the prior complaint is direct and specific.” Id. at *2.
The Tenth Circuit has also stated that “Rule 15(a)’s purpose is to provide litigants
the maximum opportunity for each claim to be decided on its merits rather than procedural
niceties.” 	Warnick v. Cooley, 895 F.3d 746, 754 (10th Cir. 2018). 	“The Federal Rules
reject the approach that pleading is a game of skill in which one misstep by counsel may
2 The undersigned Magistrate Judges notes that Plaintiff included in the Amendment to Motion to
File Third Amended Complaint what can be described at best as an attempt at bawdy humour or
at worst an insult of the proposed defendants. See Docket No. 177, p. 1. Plaintiff is reminded that
pleadings filed with this Court are not the place for such material and engaging in such conduct in
the future may result in sanctions.
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be decisive to the outcome and accept the principle that the purpose of pleading is to
facilitate a proper decision on the merits.” U.S. ex rel. Precision Co. v. Koch Indus., Inc.,
31 F.3d 1015, 1018 (10th Cir. 1994). Therefore, the undersigned Magistrate Judge declines
to hold Plaintiff to an exacting standard and considers the substance of his motion to amend
with the understanding that Plaintiff is not abandoning his claims set forth in the Second
Amended Complaint.
II. 	Leave to Amend
“Rule 15(a) provides that leave to amend ‘shall be freely given when justice so
requires.’ 	Refusing leave to amend is generally only justified upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (quoting Fed. R. Civ. Pr. 15(a)). The United
States Supreme Court has held that courts must heed the “mandate” of Rule 15(a) in
granting leave to amend. 	Foman v. Davis, 371 U.S. 178, 182 (1962). This policy of liberal
amendments, however, is not without its limits. It is implicit in Rule 15 that Plaintiff may
amend his complaint only to add matters that would have been proper to include in the
original complaint. 	Murray v. Sevier, 145 F.R.D. 563, 568 (D. Kan. 1993) (citations
omitted).
“While joinder is encouraged for purposes of judicial economy, the ‘Federal Rules
do not contemplate joinder of different actions against different parties which present
entirely different factual and legal issues.’” Golston v. Correct Care Solutions, 2012 WL
2119983 *3 (D. Kan. June 11, 2012) (quoting Zhu v. Countrywide Realty Co., Inc., 160
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F.Supp.2d 1210, 1225 (D. Kan. 2001)). Under Fed. R. Civ. P. 20(a), “[a]ll persons . . . may
be joined in one action as defendants if there is asserted against them jointly, severally, or
in the alternative, any right to relief in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question of law or fact
common to all defendants will arise in the action.” 	Thus, amendment “of a complaint
should be denied when the new claim is unrelated to the initial action,” Lystn, LLC v. FDA,
2020 WL 248962, at *12 (D. Colo. Jan. 16, 2020), prejudice “occurs when the amended
claims arise out of a subject matter different from what was set forth in the complaint and
raise significant new factual issues,” Minter v. Prime Equip. Co., 451 F.3d 1196, 1208
(10th Cir. 2006), and “[w]hen the matters alleged in a supplemental pleading . . . will not
promote judicial economy or the speedy disposition of the dispute between the parties,
refusal to allow the supplemental pleading is entirely justified,” 6A Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1506 (3d ed.).
A. Proposed Third Amended Complaint’s Claims are Unrelated
Based on a plain and generous reading of Plaintiff’s proposed Third Amended
Complaint, leave to amend should be denied because the parties and claims he seeks to add
are completely unrelated to the claims and parties named in the Second Amended
Complaint. 	Whereas the Second Amended Complaint arises out of series of events
beginning in 2019 with Plaintiff’s arrest, his interactions with the Okmulgee Sheriff’s
Office and the removal of his children, the proposed amendment involves unrelated events,
persons, transactions, and legal proceedings occurring in 2025 and 2026. Plaintiff makes
no attempt to connect the Bailey’s actions to the events alleged in the Second Amended
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Complaint and none are apparent. The only common thread is that both include writs of
assistance and his property, but each arises out of completely different circumstances and
involve different individuals.
B. Undue Delay
It is also well settled in the Tenth Circuit that untimeliness alone is a sufficient
reason to deny leave to amend. Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452, 1462
(10th Cir. 1991). 	The longer the delay, “the more likely the motion to amend will be
denied, as protracted delay, with its attendant burdens on the opponent and the court, is
itself a sufficient reason for the court to withhold permission to amend.” Minter v. Prime
Equip. Co., 451 F.3d at 1205 (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st
Cir. 2004)). 	Undue delay occurs where the plaintiff’s amendments “make the complaint
‘a moving target.’” Id. at 1206 (quoting Viernow v. Euripides Dev. Corp., 157 F.3d 785,
799-800 (10th Cir. 1998)). 	“[P]rejudice to the opposing party need not also be shown.”
Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185. 	This case was
originally filed in 2021, and the Second Amended Complaint was filed in September 2022.
While Plaintiff proposed new claims arose only recently, Plaintiff’s proposed Third
Amended Complaint is the very essence of moving target and it is not appropriate to keep
layering on new claims and parties with each of Plaintiff’s new escapades.
C. Futility of Proposed Amendment
The proposed Third Amended Complaint is futile. First, Plaintiff does not identify
any specific basis for this Court’s subject matter jurisdiction over the new defendants in
the proposed Third Amended Complaint and none is apparent. At most, Plaintiff purports
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to incorporate the jurisdictional statutes recited in the Second Amended Petition. None of
those federal statutes or constitutional provisions, however, apply to any of Plaintiff’s
claims against Kannon and Ken Bailey. 	Plaintiff’s proposed Third Amended Complaint
appears to assert claims for fraud, deceit and theft of property, and perhaps elder abuse
under Oklahoma law. As such, Plaintiff is only asserting state law claims against the new
defendants and all of them are residents of Oklahoma. Thus, there is no federal question
or diversity jurisdiction for these proposed new claims. 	Additionally, because, as noted
above, none of Plaintiff’s proposed new claims are related to the existing claims in the
Second Amended Complaint, this Court could not exercise supplemental jurisdiction over
such claims under 28 U.S.C. § 1367(a).
Second, the undersigned Magistrate Judge finds that proposed Third Amended
Complaint is also futile under the Younger3 abstention doctrine. 	Younger abstention
requires a federal court to abstain from exercising jurisdiction “where 1) there are ongoing
state proceedings; 2) the state court offers an adequate forum to hear the plaintiff’s claims
from the federal lawsuit; and 3) the state proceedings involve important state interests.”
Reed v. Stitt, 2024 WL 5131892, at *2 (W.D. Okla. Dec. 16, 2024) (quoting Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Taylor v. Jaquez,
126 F.3d 1294, 1297 (10th Cir. 1997) (noting Younger “commands a federal court to
abstain from exercising jurisdiction[.]”); Chapman v. Barcus, 372 F. App’x 899, 901 (10th
3 Younger v. Harris, 401 U.S. 37 (1971).
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Cir. 2010) (“Tenth Circuit cases consistently state that the application of Younger is
mandatory.”).
Ongoing 	State 	Proceedings. 	The 	first 	condition 	“involves 	two 	subparts: 	the
proceedings must be ongoing and they must be the type of proceedings afforded Younger
deference.” 	Hunter v. Hirsig, 660 F. App’x 711, 715 (10th Cir. 2016) (emphasis in
original). 	Regarding the first subpart, state proceedings are final for the purposes of
Younger abstention once the time for appeal has lapsed. Id. (citing Bear, 451 F.3d at 642).
Here, based on the allegations in the proposed Third Amended Complaint, it is clear the
underlying Okmulgee Case is ongoing. Indeed, proceedings are currently set for July 27,
2026. See Okmulgee Case docket.4 Based on the foregoing, the undersigned Magistrate
Judge finds the Okmulgee Case is ongoing.
As to the second subpart, Younger applies in three categories of cases: “(1) ‘state
criminal prosecutions,’ (2) ‘civil enforcement proceedings,’ and (3) ‘civil proceedings
involving certain orders that are uniquely in furtherance of the state courts’ ability to
perform their judicial functions.’” Elna Sefcovic, LLC v. TEP Rocky Mountain, LLC, 953
F.3d 660 (10th Cir. 2020) (quoting Spring Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73
(2013)). 	The Okmulgee Case appears to be a civil enforcement proceeding. 	Moreover,
whether the Okmulgee Case is one for foreclosure or eviction, it is also an action uniquely
4 The Court may take judicial notice of both its own docket sheets and other state or federal court
docket sheets. United States v. Ahidley, 486 F.3d 1184,1192, n. 5 (10th Cir. 2007) (“We may
exercise our discretion to take judicial notice of publicly-filed records in our court and certain other
courts concerning matters that bear directly upon the disposition of the case at hand.”). The docket
for the Okmulgee Case is publicly available at https://www.oscn.net.
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in furtherance of the state courts’ ability to perform their judicial functions. The Supreme
Court has held it to be “beyond question” that crafting and enforcing the laws governing
the foreclosure process is “an essential state interest.” BFP v. Resolution Trust Corp., 511
U.S. 531, 544 (1994) (rejecting interpretation of bankruptcy code provision that would
place the “title of every piece of realty purchased at foreclosure . . . under a federally created
cloud”); see also DCR Fund I, LLC v. TS Family Ltd. P'ship, 261 F. App'x, 139, 145-46
(10th Cir. 2008) (unpublished) (“We also fail to see how any claims challenging a
foreclosure sale that the state court allowed to proceed could pass muster under . . . the
Younger abstention . . . doctrine[ ].”). 	Similarly, eviction proceedings are governed by
state law, and state trial and appellate courts provide an adequate forum for Plaintiff to
litigate his rights. 	See Fleming v. Sims, 2017 WL 10591355, at *3, (D. Colo. Aug. 14,
2017) (concluding a claim for injunctive relief intended to halt an eviction proceeding
would likely be outside of the court's jurisdiction under the Younger abstention doctrine).
Therefore, the undersigned Magistrate Judge finds that the Okmulgee Case implicates an
important state interest and satisfies the second prong of the Younger abstention analysis.
Adequate State Forum. 	The second Younger requirement—that the state court be
an adequate forum for Plaintiff’s claims—is also met. 	“A plaintiff ‘typically has ‘an
adequate opportunity to raise federal claims in state court’ unless State law ‘clearly bars
the interposition of the federal statutory and constitutional claims.’” 	Pickup v. District
Court of Nowata Cnty, Okla., 2023 WL 1394896, at * 66 (N.D. Okla. Jan. 31, 2023)
(quoting Winn v. Cook, 945 F.3d 1253, 1258 (10th Cir. 2019). Plaintiff does not assert that
Oklahoma state courts are an inadequate forum for asserting his claims, and “[w]hen . . . a
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litigant has made no effort in state court to present his claims, a federal court should assume
that state procedures will afford an adequate remedy, in the absence of unambiguous
authority to the contrary.” 	Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 16 (1987). Indeed,
Plaintiff is actively contesting the default judgement in the Okmulgee Case by filing a
motion to reconsider the judgment. See Okmulgee Case Docket.
Important State Interests. Lastly, Plaintiff’s claims involve important state interests.
An order intended to somehow interfere with or halt an eviction proceeding is outside of
this Court’s jurisdiction under the Younger abstention doctrine, which precludes federal
court interference “with an ongoing state proceeding implicating important state interests.”
D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1227-28 (10th Cir. 2004); see also Davis
v. Deutsche Bank Nat’l Tr. Co. for GSAA Home Equity Tr. 2007-5, Asset-Back Certificates,
Series 2007-5, 2016 WL 8670507, at *2 (D. Colo. Dec. 30, 2016) (“the Court must abstain
from entering such relief under Younger v. Harris, 401 U.S. 37 (1971), due to the ongoing
eviction proceedings”).
Having found all three elements met, the undersigned Magistrate Judge finds the
Court would have to abstain from exercising jurisdiction over the claims in the proposed
Third Amended Complaint. 	Thus, the proposed Third Amended Complaint would be
futile.
Conclusion
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Plaintiff’s Motion to File Third Amended Complaint [Docket No. 160] and Plaintiff’s
Motion to Amend Motion to File Third Amended Complaint [Docket No. 177] should be
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DENIED. 	Any objections to this Report and Recommendation must be filed within
fourteen days. 	See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 	Any objection and
response shall each be limited to 10 pages and a reply is permitted only with leave of court
upon a showing of good cause.
DATED this 16th day of July, 2026.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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