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-JFH-GLJ
)
MCCURTAIN COUNTY JAIL TRUST; 	)
LARRY HENDRIX, individually and in 	)
his official capacity; TRENT 	)
MITCHELL; JOE EBERT; and 	)
TYLER SIVARDS, individually, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter comes before the Court on Motion for Judgment on the Pleadings by
Defendant Joe Ebert. 	Plaintiff Marion Allen Whitten sues, inter alia, former jailer Joe
Ebert, alleging various Fourth and Fourteenth Amendment violations pursuant to 42 U.S.C.
§ 1983, arising out of his 2022 incarceration at the McCurtain County Jail in Idabel,
Oklahoma. For the reasons set forth below, the undersigned Magistrate Judge recommends
that Defendant Joe Ebert’s Motion for Judgment on the Pleadings [Docket No. 124] be
DENIED.
I. 	PROCEDURAL HISTORY
Plaintiff first filed suit on these events on January 4, 2023, by filing a pro se prisoner
civil rights claim. 	See Eastern District of Oklahoma Case No. CIV-23-005-JFH-GLJ,
Docket Nos. 1-2 (“Original Case”). The original Complaint named Defendants McCurtain
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County Jail Trust (“MCJT”), Larry Hendrix, Joe LNU, and J.C. LNU [Original Case,
Docket No. 1]. In this Complaint, Plaintiff’s sole claim related to a January 2022 incident
alleging that “Joe was night supervisor, he placed me in a restraint chair, then slapped or
hit me on the side of my head, ears[.] 	Larry Hendrix and J.C. [McMillen] were Jail
Administrators at time of incident. 	I put in 2 grievances that were not answered, never
turned in to proper personel [sic].” Id., Docket No. 1, p. 5.
On January 20, 2023, Plaintiff filed an Amended Complaint, naming Defendants
Hendrix, Joe LNU, and Trent Mitchell [Id., Docket No. 6]. In this Amended Complaint,
Plaintiff’s Claim 1 refers to the January 2022 incident and asserts that, “[w]hile working
as supervisor at McCurtain County Jail Trust, Joe LNU, ordered me into a restraint chair
for spilling gravy on floor after denying a spoon for two days, became angry [and] striked
[sic] me on the ears, head a total of 3 time causing hearing damage, psychological damage.”
Id., Docket No. 6, p. 5. 	On February 14, 2023, Plaintiff filed a Second Amended
Complaint, naming MCJT, Joe Zappala, Hendrix, and J.C. “MacMillon” [Id., Docket No.
8]. 	Plaintiff’s first Claim states, “On or about January 2022, [Plaintiff], a prisoner at
[MCJT], was ordered into a restraint chair for asking for a spork. Jailor [sic] Joe Zappala
then hit plaintiff on the ears[.].” 	Id., Docket No. 8, p. 5. 	The Court granted Plaintiff in
forma pauperis status in this original case, but ultimately dismissed the case on July 13,
2023, for Plaintiff’s failure to pay the initial filing fee and failing to advise the Court of his
change of address [Id., Docket Nos. 11, 14]. Judgment was entered on July 13, 2023 [Id.,
Docket No. 15].
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Plaintiff, represented by counsel, filed this case on July 5, 2024 [Docket Nos. 1-2],
naming numerous Defendants including Ebert. 	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]. Upon invitation by the Court, Plaintiff
filed his First Amended Complaint on March 5, 2025 [Docket No. 68], again naming Ebert
among others, and it is the operative Complaint in this case.
In broad terms, Plaintiff’s First Amended Complaint alleges two separate instances
in which force was used against him at MCJT. Plaintiff alleges the first incident occurred
on January 1, 2022, when he and Ebert had an argument, at which time Ebert and another
detention officer escorted him out of his cell and placed him in a restraint chair. Docket
No. 68, pp. 13-14, ¶¶ 79-83. Plaintiff asserts that, immediately after he was placed in the
restraint chair, Ebert “unnecessarily and without provocation began to beat Plaintiff about
the head and body striking him several times,” using excessive force. 	Id., ¶¶ 83, 85-89.
Four days later, Ebert failed to report to work, which was sufficient to consider him
terminated. Id., p. 15, ¶¶ 99, 102. The second incident occurred in April 2022, after Ebert’s
termination as an employee, and therefore does not pertain to Ebert, despite allegations that
Ebert was present at this incident. Id., p. 20, ¶¶ 131-138.
Plaintiff initially alleged seven causes of action in his First Amended Complaint:
(I) § 1983 claim for a Fourth Amendment violation by use of excessive force, as to Ebert
and Mitchell; (II) § 1983 claim for a Fourth Amendment violation by failing to intervene
to prevent or stop the use of excessive force, as to Ebert, Mitchell, and Sivard; (III) § 1983
of failing to adequately train, supervise, and/or control, as to Hendrix in his official capacity
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and MCJT; (IV) § 1983 claim for a Fourteenth Amendment violation by deliberate
indifference to serious medical needs of a pretrial detainee, as to Hendrix, Mitchell,
McMillen, Ebert, and Sivard; (V) § 1983 claim for a Fourteenth Amendment violation by
deliberate indifference to health and safety of a pretrial detainee, as to Hendrix, Mitchell,
McMillen, Ebert, and Sivard; (VI) § 1983 claim for a Fourteenth Amendment violation by
use of excessive force against a pretrial detainee, as to Hendrix, Mitchell, McMillen, Ebert,
and Sivard; and (VII) § 1983 municipal liability claim under Monell1 as to MCJT. After
certain motions practice, the following claims remain against Ebert: 	(1) Count I
(Excessive Force), as to the January 2022 incident only; (2) Count V (Deliberate
Indifference to Health and Safety of Pretrial Detainee), as to the January 2022 incident
only; and (3) Count VI (Excessive Force, Fourteenth Amendment), as to the January 2022
incident only. See Docket Nos. 73, 75, 82, 85, 92. Ebert now moves for judgment on the
pleadings, on statute of limitations grounds.
II. 	Legal Standards
“After the pleadings are closed—but early enough not to delay trial—a party may
move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A Motion for Judgment on
the Pleadings is evaluated under the same standard as a Fed. R. Civ. P. 12(b)(6) motion to
dismiss. See, e. g., Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002)
(“We use the same standard when evaluating 12(b)(6) and 12(c) motions.”) (citing Atlantic
Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000)) (“A
1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
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motion for judgment on the pleading under Rule 12(c) is treated as a motion to dismiss
under Rule 12(b)(6).”).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’ 	A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-557, 570 (2007)). 	Detailed factual allegations are
not required, but the statement of the claim under Rule 8(a)(2) must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” 	Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555); see generally Fed. R. Civ. P. 8(a)(2) (complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief[.]”).
“While the 12(b)(6) standard does not require that Plaintiff establish a prima facie
case in h[is] complaint, the elements of each alleged cause of action help to determine
whether Plaintiff has set forth a plausible claim.” 	Khalik v. United Air Lines, 671 F.3d
1188, 1192 (10th Cir. 2012). 	Thus, the appropriate inquiry is “‘whether the complaint
sufficiently alleges facts supporting all the elements necessary to establish an entitlement
to relief under the legal theory proposed.’” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir.
2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)). “A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a
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cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s]
devoid of further factual enhancement[.]” Iqbal, 556 U.S. at 678.
“When considering Rule 12(c) motions, ‘the Court cannot consider any facts or
allegations beyond the Complaint or Answer.’” Goode v. Gaia, Inc., 2023 WL 7190732,
at *3 (D. Colo. Nov. 1, 2023), report and recommendation adopted sub nom. 2024 WL
1509161 (D. Colo. Mar. 29, 2024) (quoting Chavez-Rodriguez v. City of Santa Fe, 2008
WL 5992269, at *8 (D.N.M. Oct. 17, 2008)). 	Considering documents outside the
Complaint ordinarily requires the court to convert a motion into one for summary judgment
under Fed. R. Civ. P. 56, see Fed. R. Civ. P. 12(e), but an exception to this standard includes
facts subject to judicial notice. “[F]acts subject to judicial notice may be considered in a
Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary
judgment. This allows the court to take judicial notice of its own files and records, as well
as facts which are a matter of public record.” 	Tal v. Hogan, 453 F.3d 1244, 1264 n.24
(10th Cir. 2006) (quotations omitted). A fact subject to judicial notice is one that is “not
subject to reasonable dispute because it: (1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” 	Fed. R. Evid. 201. 	As such, 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.”). A court may also take judicial notice of other courts’ files and records as facts
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“capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” See Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1219
n.2 (10th Cir. 2011) (quoting Fed. R. Evid. 201(b)(2)). 	And the court may take judicial
notice of filings in related cases. 	St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169,
1172 (10th Cir. 1979).
III. 	ANALYSIS
Ebert contends the remaining claims against him are barred by the statute of
limitations, and that relation back does not apply, because he was never named in the
Original Case. 2 Plaintiff argues that the Original Case did include Ebert, and the savings
statute therefore applies.
A. Statute of Limitations and Oklahoma’s Savings Statute.
The statute of limitations for § 1983 cases is determined by state law; in Oklahoma,
it is two years. See Herrera v. City of Espanola, 32 F.4th 980, 989 (10th Cir. 2022) (“[A]
federal court looks to the law of the forum state to determine the applicable statute of
limitations for a § 1983 action. Typically, this entails looking toward the state statute of
limitations for personal injury claims.”); Lawson v. Okmulgee Cnty. Crim. Just. Auth., 726
Fed. Appx. 685, 690 (10th Cir. 2018) (“We have determined, as a matter of law, that every
§ 1983 claim is in essence an action for injury to personal rights, and thus apply the most
analogous Oklahoma statute, which provides a two-year limitations period.”) (quotation
omitted) (citing Okla. Stat. tit. 12, § 95(A)(3) (“Civil actions . . . can only be brought within
2 The undersigned Magistrate Judge notes that Ebert did not even raise this argument in his original
Motion to Dismiss filed in this case. See Docket No. 73.
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[two years] after the cause of action shall have accrued, and not afterwards . . . for injury
to the rights of another.”). 	The accrual date, in contrast, is a matter of federal law and
determines “when the plaintiff can file suit and obtain relief.” 	Herrera, 32 F.4th at 990
(internal quotations omitted). Plaintiff alleges the first incident with Ebert took place on
January 1, 2022, meaning that Plaintiff originally had until January 1, 2024, in which to
file a lawsuit on that claim. Plaintiff’s Original Case, filed on January 4, 2023, named Joe
LNU in the original and Amended Complaint, then Joe Zappala in the Second Amended
Complaint (filed February 14, 2023). The Original Case was dismissed July 13, 2023. See
Case No. CIV-23-05-JFH-GLJ, Docket Nos. 1, 6, 8, 14-15. Any claims brought pursuant
to the savings statute thus had to be filed by July 13, 2025. Plaintiff filed the present case
on July 5, 2025. Docket Nos. 1-2.
“Oklahoma’s savings statute, 12 Okla. Stat. tit. § 100, affords civil plaintiffs an
additional year to refile if a case fails other than on the merits after the original limitations
period has expired.” 	Eastom v. City of Tulsa, 563 Fed. Appx. 595, 596 (10th Cir. 2014)
(citing Twashakarris, Inc. v. INS, 890 F.2d 236, 237 (10th Cir. 1989); Grider v. USX Corp.,
1933 OK 13, ¶ 6, 847 P.2d 779, 783)). The Tenth Circuit has applied Oklahoma’s savings
statute to § 1983 claims. 	See Eastom, 783 F.3d at 1184 (citations omitted). 	Plaintiff
contends the savings statute applies here and raises this in his First Amended Complaint
by noting the relevant dates of the Original Case. Docket No. 68, p. 2, ¶¶ 3-6. 	Herrera,
32 F.4th at 991 (“If from the complaint, the dates on which the pertinent acts occurred are
not in dispute, [then] the date a statute of limitations accrues is . . . a question of law suitable
for resolution at the motion to dismiss stage.”) (quotation omitted).
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Federal law requires that “[e]very pleading must have a caption with the court’s
name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must
name all the parties.” Fed R. Civ. P. 10(a). Notwithstanding the clear requirement of Fed.
R. Civ. P. 10(a) to “name all the parties” in the caption of the complaint, the Tenth Circuit
has held that “a party not properly named in the caption of a complaint may still be properly
before the court if the allegations in the body of the complaint make it plain the party is
intended as a defendant.” Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). In
Plaintiff’s Original Case, he names Joe LNU in the original and Amended Complaints, and
Joe Zappala in the Second Amended Complaint, and includes facts related to the restraint
chair incident, and Ebert’s job title as night supervisor. See Docket Nos. 1, 6, 8; Tracewell
v. Silver, 2017 WL 58841, at *3 (N.D. Okla. Jan. 5, 2017) (“Federal district courts in
Oklahoma have similarly construed complaints to include people who are not listed in the
caption, but whose actions are alleged elsewhere in the complaint, as party defendants.”);
cf. Morris v. City of Sapulpa, 2010 WL 3733527, at *4 (N.D. Okla. Sept. 17, 2010) (“Given
the paucity of Oklahoma law on this subject, the interpretation of [12 Okla. Stat. § 994] by
other courts, and the liberal construction afforded the savings statute by Oklahoma courts,
this Court will not hold that dismissal of one party from an action on the merits precludes
that party’s inclusion in a later refiling for purposes of section 100.”) (internal citation
omitted).
The undersigned Magistrate Judge notes Ebert’s argument that Ebert was not named
because Plaintiff named, at best, Joe LNU, and fictitious defendants may not be used to toll
the statute of limitations. 	See, e.g. Horrell v. Cherokee Cnty. Governmental Bldg. Auth.,
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2024 WL 4493883, at *3 (E.D. Okla. Apr. 2, 2024) (“Also pertinent here, naming a John
Doe defendant in the caption of a complaint does not toll the statute of limitations.”)
(quotation omitted), report and recommendation adopted, 2024 WL 4346715 (E.D. Okla.
Sept. 30, 2024). The undersigned Magistrate Judge therefore finds that naming “Joe LNU,”
along with a description of dates and a job title is distinguishable from simply naming a
“Doe” Defendant or nameless Defendant.
The undersigned Magistrate Judge therefore finds, under Mitchell, 80 F.3d at 1441,
and upon considering Plaintiff’s pro se status in the Original Case, that Ebert is properly
named as a Defendant in this case because the allegations of the Original Case Complaint
are sufficiently distinguishable from those against a “John Doe” defendant. The body of
the original Complaint in the Original Case, filed on January 4, 2023, and for which
Judgment was not entered until July 13, 2023, makes it plain Ebert was intended as
Defendant “Joe LNU” in the Original Case Complaint. See Original Case, Docket Nos. 1,
15. 	The undersigned Magistrate Judge thus construes the Original Case as inclusive of
Ebert because it is clear Plaintiff intended him as a Defendant. 	The savings statute
therefore should be applied to Plaintiff’s claims against Ebert.
Defendant contends that even if the savings statute would have applied as to Ebert,
it does not save Plaintiff’s claims against him here because “Joe Zappala” was substituted
for “Joe LNU” on February 14, 2023. 	Rather than applying the Judgment date in the
Original Case of July 13, 2023, in applying the saving statute, Ebert argues the savings
statute expired as to himself on February 14, 2024, one year after Joe Zappala was
substituted for Joe LNU. 	However, “[i]n Oklahoma, as in federal practice, an action is
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commenced by plaintiff’s filing an initial pleading (either a complaint or petition), Fed. R.
Civ. P. 3; Okla. Stat. tit. 12, § 2003; and ends as to fewer than all parties in a multiparty
action only if the court directs the entry of a final judgment as to one or more parties and
makes an express determination that there is no just reason for delay, Fed. R. Civ. P. 54(b);
Okla. Stat. tit. 12, § 994.” Hagy v. American Honda Motor Co., 125 F. Supp. 2d 456, 459
(W.D. Okla. 2000). 	The undersigned Magistrate Judge agrees with the Northern and
Western Districts of Oklahoma in finding that “this Court ‘knows of no authority holding
that a plaintiff may not include all prior defendants in the new case,’ and ‘in the absence of
Oklahoma authority squarely on this point, we follow the federal jurisprudence.’” Morris,
2010 WL 3733527, at *4 (quoting Hagy, 125 F. Supp. 2d. at 459). The Oklahoma savings
statute therefore applies to Plaintiff’s claims against Mitchell, and the motion for judgment
on the pleadings should therefore be denied.
IV. 	CONCLUSION
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Defendant Joe Ebert’s Motion for Judgment on the Pleadings [Docket No. 124] be
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 objections 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 10th day of April, 2026.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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