Whitten v. Hendrix, et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARION ALLEN WHITTEN, JR., 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-24-229-RAW-GLJ
)
LARRY HENDRIX; TRENT 	)
MITCHELL; and JOE EBERT, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s Motion to File Second Amended
Complaint as Per Court Order [Docket No. 107] and Plaintiff’s Motion to Supplement
Plaintiff’s “Motion to File Second Amended Complaint” [Docket No. 113]. 	The Court
referred this case to the undersigned Magistrate Judge for all pretrial and discovery matters,
pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72 [Docket No. 49]. For the reasons set
forth below, the undersigned Magistrate Judge recommends1 that the motions be DENIED.
1 “There is some uncertainty among District Courts in the Tenth Circuit as to whether a denial of
a motion for an amended complaint constitutes a dispositive or non-dispositive matter.” Bugg v.
Benson, 2024 WL 170742, at *2 & n.12 (D. Utah Jan. 16, 2024) (comparing Anastasion v. Credit
Serv. of Logan, Inc., No. 2:08-CV-180 TS, 2011 WL 1376050, at *1 (D. Utah Apr. 12, 2011)
(concluding the denial of a motion to amend a complaint is a non-dispositive matter) with
Overhead Solutions v. A1 Garage Door Service, No. 19-CV-01741-PAB-NYW, 2021 WL
3732764, at *3 (D. Colo. Aug. 24, 2021) (concluding the denial of a motion to amend a complaint
is a dispositive matter). The undersigned Magistrate Judge proceeds with a recommendation out
of an abundance of caution. See, e.g., Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458,
1462-1463 (10th Cir. 1988) (“[M]otions not designated on their face as one of those excepted in
[28 U.S.C. § 636(b)(1)] subsection (A) are nevertheless to be treated as such a motion when they
have an identical effect.”).
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PROCEDURAL HISTORY & BACKGROUND
Plaintiff filed this case on July 5, 2024 [Docket Nos. 1-2], naming the McCurtain
County Jail Trust (“MCJT”); Larry Hendrix, in his individual capacity and in his official
capacity as McCurtain County Jail Administrator; Trent Mitchell, a jailer; Joe Ebert; Tyler
Sivard, individually and in his official capacity; and James McMillen, jailer and Assistant
Jail Administrator. 	Upon invitation by the Court, Plaintiff filed his First Amended
Complaint on March 5, 2025, which no longer named Tyler Sivard in his official capacity
[Docket No. 68]. Plaintiff alleged seven causes of action in his First Amended Complaint.
Following motions to dismiss by all Defendants, the undersigned Magistrate Judge
recommended that the motions be granted as to some and granted in part as to others.
Docket Nos. 85-88. 	Plaintiff objected only to the Report and Recommendation as to
Defendants McCurtain County Jail Trust, Lary Hendrix in his official capacity, and James
McMillen in his individual and official capacities [Docket No. 88], which recommended
that the claims against Defendants MCJT and Hendrix be dismissed and the claims as to
McMillen be denied as moot. 	In the objection, Plaintiff asserted he should have been
granted leave to file a second amended complaint to cure deficiencies, but provided no
insight as to the amendments he sought or the deficiencies needing correction, see Docket
No. 91, only explaining that he did not object to the portion of the Report and
Recommendation as to McMillen, Docket No. 91, p. 2 n.1.
Upon conducting a de novo review, the Court noted Fed. R. Civ. P. 15(a)(2)’s
interest in granting leave to amend when justice so requires. Noting Plaintiff waived any
objection to the other three Report and Recommendations (relating to Mitchell, Sivard, &
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Ebert) [Docket Nos. 85-87], the Court granted Plaintiff leave to file a “proper motion
requesting leave to amend, but that the proposed amendments may only concern the
allegations as to the defendants which are the concern of that Report and Recommendation,
i.e., the [MCJT], [and] Larry Hendrix.” Docket No. 92, p. 3. Plaintiff’s motion for leave
to amend was due July 25, 2025. 	Id., p. 5. The undersigned Magistrate Judge addresses
here the events and motions following the Court’s instruction granting Plaintiff the
opportunity to request leave to amend the First Amended Complaint [Docket No. 68].
ANALYSIS
On July 25, 2025, Plaintiff, without leave of Court, filed a Second Amended
Complaint. 	Docket No. 97. 	The undersigned Magistrate Judge struck it for failure to
comply with this Court’s previous order requiring him to seek leave to amend. Docket No.
98. On July 28, 2025, Plaintiff filed “Plaintiff Marion Allen Whitten Jr. Motion to Accept
for Filing Second Amended Complaint Previously Filed on June 25, 2025 [Dkt. #92].”
Docket No. 99.2 Notably, in addition to facts relating to MCJT and Hendrix, the proposed
Second Amended Complaint included additional allegations related to Ebert, including
additional facts and assertions in support of the claim for excessive force directed solely at
Ebert and Mitchell. 	See, e.g., Docket No. 99, Ex. 2, pp. 6-7, 14-17, 20-26. 	MCJT and
Hendrix moved to strike the motion for noncompliance with the Court’s orders. 	Docket
No. 101. The undersigned Magistrate Judge then held a motion hearing on, inter alia, the
2 Counsel for Plaintiff admits in this motion that, rather than reading the Order issued by the Court,
he relied on the text of the docket minute entry as permission for leave to file a Second Amended
Complaint. Docket No. 99, p. 2, ¶ 6.
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motion for leave to amend. Following the hearing, the Court’s order instructed Plaintiff in
part that:
“Plaintiff Marion Allen Whitten, Jr.[’s] Motion to Accept for Filing Second
Amended Complaint Previously filed on June 25, 2025 [Docket No. 92]” [Docket
No. 99] is hereby DENIED. 	Plaintiff shall be given one final opportunity to seek
leave to amend his First Amended Complaint on or before Friday, September 5,
2025. 	Plaintiff’s motion shall be accompanied by: (i) a clean version of his
Proposed Second Amended Complaint, attached as Exhibit 1, and (ii) a redline
version detailing all insertions and deletions. Plaintiff’s proposed Second Amended
Complaint must comply with U.S. Chief District Judge Ronald A. White’s previous
Order [Docket No. 92], which instructs that “the proposed amendments may only
concern the allegations as to the defendants which are the concern of [Docket No.
88], i.e., the McCurtain County Jail Trust, Larry Hendrix in his official capacity,
and James McMillen.” 	Docket No. 92, p. 3 (emphasis added). 	Plaintiffs may
additionally remove and renumber the proposed Second Amended Complaint to
comply with this Court’s previous rulings as set forth in Docket Nos. 85-88, 92, i.e.,
cleanup of dismissed claims and parties is permitted. 	Furthermore, Plaintiff’s
motion shall comply with this Court’s Local Rules and Administrative Guide,
including Loc. Civ. R. 7.1(k) and this Court’s guidelines for providing courtesy
copies to the Court. 	No further extensions or opportunities to amend shall be
granted.
Docket No. 106, pp. 1-2. 	On September 5, 2025, Plaintiff filed “Plaintiff Marion Allen
Whitten, Jr. Motion to File Second Ammended [sic] Complaint as Per Court Order [Dkt.
#106]” [Docket No. 107], attached both a clean and redline version as exhibits, and
submitted a proper courtesy copy to the Court. 	Defendants MCJT, Hendrix, and Ebert
objected to the motion, arguing Plaintiff has repeatedly failed to cure deficiencies. Docket
Nos. 111-112. 	MCJT and Hendrix note that the claims against Hendrix in his official
capacity are duplicative of claims against MCJT (as previously noted in the Report and
Recommendation, Docket No. 88), and that the proposed Monell claim fails to state a claim
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for relief, are conclusory, and amendment would be futile. Docket No. 111. Ebert objects,3
asserting Plaintiff’s proposed Second Amended Complaint contains additional facts
prohibited by the Court and not in the version submitted to counsel prior to the motion
being filed. 	Ebert specifically and strenuously objects to the addition of any language
pertaining to Ebert not contained in the First Amended Complaint, and that leave to amend
would prejudice him. Docket No. 112. Plaintiff failed to respond to these objections.
Instead, on September 24, 2025, Plaintiff filed “Motion to Supplement Plaintiff’s
“Motion to File Second Amended Complaint” [Dkt. #107]” [Docket No. 113], which seeks
leave to add another paragraph to the September 5, 2025 proposed Second Amended
Complaint [Docket No. 107]. 	Plaintiff attached as exhibits a clean proposed amended
Second Amended Complaint, along with a redline comparison, but did not submit a
courtesy copy to the Court in accordance with this Court’s Local Rules and Administrative
Guide. Plaintiff’s motion represents that he seeks only to add one paragraph, between the
Proposed 	Second 	Amended Complaint 	¶¶ 	216-217 at Docket No. 107, containing
information related to his Monell claim which was unavailable prior to September 17, 2025.
This addition reflects that MCJT shift supervisor Cody Johnson was charged in Eastern
District of Oklahoma Case No. CR-25-161-JFH with a violation of 18 U.S.C. § 241,
conspiracy against rights, on September 8, 2025, and pleaded guilty on September 17,
2025, providing a factual basis for actions he took against former inmate Roper Harris.4
3 Ebert’s counsel also made these arguments as to the proposed Second Amended Complaint at
the motion hearing on August 25, 2025.
4 Mr. Harris’s experience at MCJT is the subject of another case in this case. Case No. CIV-22-
187-RAW-DES, Harris v. McCurtain County Jail Trust. The Court may take judicial notice of
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Ebert, MCJT, and Hendrix filed a joint response in opposition to Plaintiff’s Docket
No. 113. The Response re-asserts the previous objections to the original proposed Second
Amended Complaint [Docket No. 107 & Exs. 1-2], noting that the second proposed Second
Amended Complaint at Docket No. 113 still contains prohibited novel allegations as to
Ebert and allegedly fails to state a claim. 	Further, Defendants contend the amendment
related to Johnson is irrelevant because Monell requires policymakers to be aware of
unconstitutional conduct prior to the events in the relevant case and Johnson’s plea
occurred well after the events in this case, and that other facts related to the Harris case
had already been included in the original proposed Second Amended Complaint.
Plaintiff contends that the supplemental paragraph is highly relevant and goes to
MCJT’s official policy at the time of the events involving Plaintiff. 	Plaintiff does not at
any point, however, address Ebert’s arguments regarding prohibited additions, nor MCJT’s
arguments as to futility based on failure to state a claim. 	Docket No. 116. 	Plaintiff also
clarifies for the first time that he is not attempting to bring any further claims as to Hendrix
in his official capacity. Docket No. 116.
“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
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.”).
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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. P. 15(a)).
Pursuant to Federal Rule of Civil Procedure 15(a)(2), if over 21 days have passed
since the service of the earlier of either a responsive pleading or a motion under Rule 12(b),
(e), or (f), “a party may amend its pleading only with the opposing party’s written consent
or the court’s leave.” 	The Tenth Circuit has “held that denial of leave to amend is
appropriate ‘when the party filing the motion has no adequate explanation for the delay.’”
Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (quoting Frank, 3 F.3d
at 1365-1366); see also Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir.1994)
(“[U]nexplained delay alone justifies the district court’s discretionary decision.”); Fed. Ins.
Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987) (“Courts have denied leave
to amend in situations where the moving party cannot demonstrate excusable neglect. For
example, courts have denied leave to amend where the moving party was aware of the facts
on which the amendment was based for some time prior to the filing of the motion to
amend.”). Plaintiff failed to timely file his request for leave to amend due to his admitted
failure to read the Court’s Order. The undersigned Magistrate Judge nevertheless declines
to recommend denial of the motion on this basis, choosing instead to address the merits of
the request itself in light of “the judicial system’s strong predisposition to resolve cases on
their merits.” 	Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (1992). 	Additionally, Plaintiff
was aware of the identity of the relevant parties well before the deadline and of the facts
underlying the case, with the singular exception of the facts related to Cody Johnson’s
criminal charges.
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The undersigned Magistrate Judge finds both iterations of Plaintiff’s proposed
Second Amended Complaint fail to comply with this Court’s explicit instruction that
“proposed amendments may only concern the allegations as to” MCJT and Hendrix in his
official capacity. Docket No. 92, p. 3. The undersigned Magistrate Judge further declines
to parse the permitted and prohibited changes in order to render the proposal(s) appropriate.
Courts will properly deny a motion to amend when it appears that the plaintiff
is using Rule 15 to make the complaint “a moving target,” Viernow v.
Euripides Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1998), to “salvage a lost
case by untimely suggestion of new theories of recovery,” Hayes v. Whitman,
264 F.3d 1017, 1027 (10th Cir. 2001), to present “theories seriatim” in an
effort to avoid dismissal, Pallottino v. City of Rio Rancho, 31 F.3d 1023,
1027 (10th Cir. 1994), or to “knowingly delay[ ] raising [an] issue until the
‘eve of trial,’” Walters v. Monarch Life Ins. Co., 57 F.3d 899, 903 (10th Cir.
1995).
Minter, 451 F.3d at 1206. It seems particularly apparent here that Plaintiff is using Rule
15 to make the complaint a moving target, and Plaintiff’s request for leave to amend should
therefore be denied. 	All three iterations of the proposed Second Amended Complaint
[Docket Nos. 97; 107, Exs. 102; 113, Exs. 1-2] contain changes made outside the Court’s
explicitly-provided 	parameters 	in 	an 	effort 	to 	bolster 	remaining 	claims 	or 	revive
previously-dismissed claims with additional pleading. 	Given the number of attempts at
submitting a Second Amended Complaint, as well as the recent hearing following which
Plaintiff was given a second instruction as to the parameters of any permitted amendment
to the operative Complaint, the undersigned Magistrate Judge likewise finds Plaintiff has
failed to cure deficiencies by amendments previously allowed. 	See, e.g., Amaro v. New
Mexico, 2021 WL 3671117, at *3 (10th Cir. Aug. 19, 2021) (“Rather than focusing on the
alleged February 2014 incident and related grievance proceedings, as this court’s mandate
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anticipated and as the district court directed in its order granting Amaro leave to amend,
the amended complaint outlines a host of claims spanning multiple years. 	For example,
the amended complaint purports to set forth claims related to Amaro falling from his cell
bunk in October 2014, ROA at 264, for a March 27, 2018 exposure to carbon monoxide
for 	‘[d]efective 	construction 	of 	a 	correctional 	facility,’ 	and 	for 	an 	unspecified
‘assault/battery with bodily intrusion[.]’”) (internal citations omitted); 	Karim v. U.S.
Marshals Serv., 2011 WL 4538433, at *2 (W.D. Okla. Sept. 29, 2011) (“Defendants argue
Plaintiff has failed to comply with the Court’s August 4, 2010 Order because 1) she asserts
claims against defendants who were dismissed by that Order; 2) she asserts claims on
which leave to amend was not authorized because the claims were not administratively
exhausted; and 3) her hostile-environment claims are not timely or fail to allege facts
sufficient to state a plausible claim for relief. A review of the First Amended Complaint
establishes that Defendants are correct.”).
CONCLUSION
In sum, the undersigned Magistrate Judge hereby RECOMMENDS that “Plaintiff’s
Motion to File Second Amended Complaint as Per Court Order [Dkt. #106]” [Docket No.
107] and “Plaintiff’s Motion to Supplement Plaintiff’s ‘Motion to File Second Amended
Complaint’ [Dkt. #107]” [Docket No. 113] be DENIED for failure to comply with this
Court’s previous Order. 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). A response shall
be due within fourteen days of any objection. Any objections and response shall each be
limited to 10 pages and a reply is permitted only with leave of court upon a showing of
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good cause.
IT IS SO ORDERED this 11th day of December, 2025.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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