DiCesare v. Makinson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JOSEPH ANGELO DICESARE,
Plaintiff,
v.
GARY MAKINSON, et al.,
Defendants.
Civil No. 21-231 (FAB)
MEMORANDUM 	AND 	ORDER
BESOSA, Senior District Judge.1
Before the Court are two Reports and Recommendations (“R&Rs”)
issued by U.S. Magistrate Judge Gerald L. Jackson (Docket No. 182;
Docket 	No. 	183) 	regarding 	plaintiff 	Joseph 	Angelo 	DiCesare
(“plaintiff”)’s 	motion 	to 	file 	a 	third 	amended 	complaint 	(Docket
No. 	160), 	plaintiff’s 	motion 	to 	amend 	his 	motion 	to 	file 	third
amended 	complaint 	(Docket 	No. 	177), 	and 	plaintiff’s 	“*Cease 	&
Desist* *Motion to Vacate Sale* *T.R.O.*” 	(Docket No. 176.) 	This
case is before the undersigned judge by designation pursuant to 28
U.S.C. 	§ 	292(d). 	See 	Docket 	No. 	146. 	For 	the 	reasons 	set 	forth
below, 	the 	Court 	ADOPTS 	both 	R&Rs, 	and 	DENIES 	plaintiff’s 	motion
to 	file 	a 	third 	amended 	complaint, 	DENIES 	plaintiff’s 	motion 	to
1 Senior United States District Judge for the District of Puerto Rico, sitting
by designation.
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amend 	his 	motion 	file 	a 	third 	amended 	complaint, 	and 	DENIES
plaintiff’s “*Cease & Desist* *Motion to Vacate Sale* *T.R.O.*”
A 	district 	court 	may 	refer 	a 	pending 	motion 	to 	a 	magistrate
judge 	for 	a 	report 	and 	recommendation. 	See 	28 	U.S.C.
§ 636(b)(1)(B); 	Fed. 	R. 	Civ. 	P. 	72(a). 	Any 	party 	adversely
affected 	by 	the 	report 	and 	recommendation 	may 	file 	written
objections within fourteen days of being served with the magistrate
judge’s 	report. 	28 	U.S.C. 	§ 	636(b)(1). 	“A 	party 	that 	files 	a
timely 	objection 	is 	entitled 	to 	a 	de 	novo 	determination 	of 	those
portions 	of 	the 	report 	or 	specified 	proposed 	findings 	or
recommendations 	to 	which 	a 	specific 	objection 	is 	made.” 	Lowery
Wilkinson 	Lowery, 	LLC 	v. 	Illinois, 	No. 	25-CV-22-RAW, 	2025 	U.S.
Dist. LEXIS 268063, at *3 (E.D. Okla. Dec. 31, 2025) (citing United
States 	v. 	Raddatz, 	446 	U.S. 	667, 	673 	(1980)). 	“The 	objections
must 	specifically 	identify 	those 	findings 	or 	recommendations 	to
which 	objections 	are 	being 	made” 	and 	“[t]he 	district 	court 	need
not 	consider 	frivolous, 	conclusive, 	or 	general 	objections.” 	Id.
(citing Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir.
1987)). 	In 	conducting 	its 	review, 	the 	court 	is 	free 	to 	“accept,
reject, 	or 	modify, 	in 	whole 	or 	in 	part, 	the 	findings 	or
recommendations 	made 	by 	the 	magistrate 	judge.” 	28 	U.S.C.
§ 636(a)(b)(1).
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Civil No. 21-231 (FAB)___ 	__ 	3
Plaintiff’s 	second 	amended 	complaint 	brings 	various 	claims
against 	law 	enforcement 	officers 	and 	Oklahoma 	Human 	Services
personnel 	alleging 	improprieties 	during 	an 	arrest, 	an 	allegedly
illegal execution of a writ of assistance in plaintiff’s home, and
violation of his rights during a child welfare investigation. 	See
Docket No. 64.
On 	March 	3, 	2026, 	plaintiff 	attempted 	to 	enjoin 	KB
Enterprises, 	Kade, 	Kannon 	and 	Ken 	Bailey 	from 	evicting 	him 	from
his land. 	See Docket No. 137 at p. 3. 	The Court, however, rejected
this 	motion 	because 	they 	were 	not 	parties 	to 	the 	case 	and 	they
were 	not 	involved 	in 	any 	of 	the 	incidents 	that 	gave 	rise 	to
plaintiff’s claims. 	(Docket No. 153.)
Plaintiff now seeks to file a Third Amended Complaint to add
new 	parties 	and 	claims 	that 	seem 	to 	arise 	from 	his 	interactions
and 	a 	real 	estate 	transaction 	with 	Kannon 	and 	Ken 	Bailey 	(“the
Baileys”). 	(Docket 	No. 	160; 	Docket 	No. 	177.) 	On 	July 	16, 	2026,
the 	magistrate 	judge 	issued 	a 	thorough 	and 	well-supported 	R&R
recommending 	that 	plaintiff’s 	motion 	to 	file 	the 	third 	amended
complaint 	be 	denied. 	(Docket 	No. 182.) 	The 	magistrate 	judge
recommended denial of the motion after finding that (1) the parties
and claims that plaintiff seeks to add are unrelated to the claims
and 	parties 	in 	the 	second 	amended 	complaint, 	(2) 	plaintiff’s
amendments 	have 	made 	the 	complaint 	a 	moving 	target 	and 	it 	is
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Civil No. 21-231 (FAB)___ 	__ 	4
inappropriate to keep layering new claims and parties, and (3) the
Proposed 	Third 	Amended 	Complaint 	is 	futile 	because 	it 	does 	not
identify 	the 	Court’s 	subject 	matter 	jurisdiction 	and 	because 	the
Court 	should 	abstain 	pursuant 	to 	the 	Younger 	doctrine. 	Id. 	at
pp. 7-12. 	Should 	the 	Court 	adopt 	the 	finding 	that 	the 	third
amended 	complaint 	not 	be 	allowed, 	the 	magistrate 	judge 	also
recommended 	denying 	plaintiff’s 	motion 	to 	vacate 	sale 	and
temporary 	restraining 	order 	(“TRO”) 	because 	the 	Baileys 	are 	not
parties to the case.
The 	plaintiff 	filed 	objections 	on 	August 	13, 	2026, 	twenty-
eight 	days 	after 	the 	R&R 	was 	issued. 	(Docket 	No. 	192.)
Plaintiff’s 	objections 	are 	untimely; 	they 	were 	filed 	past 	the
fourteen-day 	deadline. 	Nonetheless, 	for 	completeness, 	the 	Court
has 	made 	an 	independent 	examination 	of 	the 	entire 	record 	in 	this
case 	and 	agrees 	with 	the 	magistrate 	judge’s 	reasoning 	as 	to 	why
plaintiff’s 	motions 	should 	be 	denied, 	and 	finds 	that 	plaintiff’s
objections have no merit.
Generally, “court[s] should freely give leave [to amend] when
justice 	so 	requires, 	[] 	especially 	[] 	when 	the 	plaintiff 	is
proceeding pro se.” 	(Docket No. 170 at pp. 24-25) (citing Panicker
v. 	State 	Dep’t 	of 	Agric., 	498 	Fed. 	Appx. 	755, 	757 	(10th 	Cir.
2012)). 	A court may refuse to grant leave to amend, however, “upon
a 	showing 	of 	futility 	of 	amendment.” 	Panicker, 	498 	Fed. 	Appx.
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Civil No. 21-231 (FAB)___ 	__ 	5
at 757 	(quoting 	Frank 	v. 	U.S. 	W., 	Inc., 	3 	F.3d 	1357, 	1365 	(10th
Cir. 1993)) (internal alterations omitted). 	“A proposed amendment
is 	futile 	if 	the 	complaint, 	as 	amended, 	would 	be 	subject 	to
dismissal.” 	Id. 	(quoting 	Jefferson 	Cnty. 	Sch. 	Dist. 	No. 	R-1 	v.
Moody’s Inv.’s Serv., Inc., 175 F.3d 848, 859 (10th Cir. 1999)).
Plaintiff 	first 	objects 	to 	the 	magistrate 	judge’s 	finding
that the amended complaint is unrelated to the original complaint.
(Docket 	No. 	192 	at 	pp. 	2-3.) 	He 	argues 	that 	the 	“common
denominators” 	among 	the 	three 	complaints 	are 	the 	graft 	and
corruption 	in 	Oklahoma, 	the 	property 	involved, 	and 	the
constitutional 	violations. 	Plaintiff 	misunderstands 	the
magistrate judge’s finding. 	While the theme of the complaints may
be the same or similar, his claims arise from two different set of
facts. 	In 	his 	proposed 	third 	amended 	complaint, 	plaintiff 	moves
to 	join 	the 	Baileys 	as 	defendants 	claiming 	they 	evicted 	him 	from
his home located at 1470 Gun Club Road, Okmulgee, OK 74447 in 2025.
The 	second 	amended 	complaint 	arises 	from 	a 	series 	of 	events
starting in 2019, which led to plaintiff’s arrest in the 1470 Gun
Club 	Road 	property. 	While 	the 	property 	is 	the 	same 	in 	both
complaint, 	there 	is 	no 	common 	set 	of 	facts. 	See 	Fed. 	R. 	Civ.
P. 20(a)(2) 	(“Persons 	. 	. 	. 	may 	be 	joined 	in 	one 	actions 	as
defendants 	if 	(A) 	any 	right 	to 	relief 	. 	. 	. 	aris[es] 	out 	of 	the
same 	transaction, 	occurrence, 	or 	series 	of 	transactions 	or
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Civil No. 21-231 (FAB)___ 	__ 	6
occurrences; 	and 	(B) 	any 	question 	of 	law 	or 	fact 	common 	to 	all
defendants will arise in the action.”) (emphasis added). 	Finally,
the 	constitutional 	violations 	are 	not 	a 	common 	thread 	because,
from the Court’s understanding, the Baileys are private citizens,
and 	the 	Constitution 	protects 	against 	encroachment 	from 	the
federal or state government.2
DiCesare next objects to the magistrate judge’s finding that
the 	filing 	of 	the 	proposed 	third 	amended 	complaint 	is 	untimely.
(Docket 	No. 	192 	at 	p. 	5.) 	He 	argues 	that 	the 	magistrate 	judge’s
finding 	referring 	to 	a 	moving 	target 	“doesn’t 	make 	any 	sense 	at
all” 	because 	“‘targets’ 	are 	going 	to 	‘move,’ 	unless 	[they’re]
dead!” 	Id. 	DiCesare 	again 	misunderstands. 	It 	is 	not 	the
defendants that are moving, but the allegations in the complaint.
The 	magistrate 	judge 	was 	simply 	explaning 	that 	Plaintiff 	keeps
changing 	the 	facts 	and 	adding 	new 	players, 	which 	delays 	and
interferes with the resolution of his case. 	Plaintiffs also takes
issue 	with 	the 	magistrate 	judge 	referring 	to 	his 	new 	factual
allegations 	as 	“new 	escapades” 	and 	that 	the 	Court 	is 	blaming 	him
for 	the 	delay 	and 	not 	blaming 	the 	defendants. 	Id. 	at 	p. 	6. 	The
Court 	is 	not 	blaming 	plaintiff; 	he 	just 	cannot 	bring 	his 	claims
against the Baileys in this case.
2 DiCesare mentions different county commissioners but fails to make any factual
allegations about their actions. 	(Docket No. 160.)
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Civil No. 21-231 (FAB)___ 	__ 	7
DiCesare’s 	final 	objection 	is 	to 	the 	magistrate 	judge
finding’s 	that 	third 	amended 	complaint 	is 	futile 	because 	of 	the
Younger 	abstention 	doctrine. 	Pursuant 	to 	the 	Younger 	abstention
doctrine, a federal court must abstain “where (1) there are ongoing
state proceeding; (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). 	The
Court, however, will not address this objection because the Court
lacks subject matter jurisdiction over plaintiff’s new claims – a
finding to which plaintiff does not object. 	The claims raised in
his proposed third amended complaint are all state law claims and,
as 	discussed 	above, 	are 	unrelated 	to 	his 	existing 	claims 	in 	the
second 	amended 	complaint, 	so 	the 	Court 	cannot 	exercise
supplemental jurisdiction. 	Furthermore, the Court cannot exercise
diversity 	jurisdiction 	because 	Plaintiff 	and 	the 	Baileys 	are 	all
citizens 	of 	Oklahoma. 	Therefore, 	the 	Court 	denies 	plaintiff’s
motion for leave to file the third amended complaint.
Because the Court is not allowing plaintiff to file his third
amended complaint, the Court also denies his motion to vacate sale
and TRO. 	As the Court stated in its denial of plaintiff’s motion
for injunctive relief at Docket No. 153, “the Court does not have
authority 	to 	enjoin 	non-parties 	without 	a 	showing 	that 	they 	are
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‘acting 	as 	agents 	of 	or 	in 	active 	concert 	with 	any 	identified
defendant.” 	(Docket No. 153 at p. 3.)
Accordingly, for the reasons set forth above, the Court ADOPTS
both R&Rs (Docket No. 182; Docket No. 183), and DENIES plaintiff’s
motion 	for 	leave 	to 	file 	a 	third 	amended 	complaint 	(Docket
No. 160), DENIES plaintiff’s motion to amend motion to file third
amended complaint (Docket No. 177), and DENIES plaintiff’s “*Cease
& Desist* *Motion to Vacate Sale* *T.R.O.*” 	(Docket No. 176.)
IT IS SO ORDERED.
San Juan, Puerto Rico, September 29, 2026.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
SENIOR UNITED STATES DISTRICT JUDGE
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