David v. Crow et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JEROME ADRIAN DAVID, )
)
Plaintiff, )
)
v. ) Case No. CIV-21-534-SLP
)
SCOTT CROW, et al., )
)
Defendants. )
O R D E R
Before the Court is Plaintiff’s pro se Motion for Entry of Judgment on Less Than
All Claims or for Less Than All Parties [Doc. No. 193].1 Defendants have been given an
opportunity to respond, see Order [Doc. No. 194], and have failed to timely do so. Upon
review and for the reasons that follow, Plaintiff is directed to supplement his Motion.
This Court previously entered Judgment [Doc. No. 182] on Plaintiff’s claims. The
Court mistakenly understood all claims to have been disposed of and, therefore, that the
judgment was a final judgment. Plaintiff filed an appeal and during the pendency of the
appeal, the Tenth Circuit Court of Appeals determined that one claim against one
Defendant had never been adjudicated. See Order [Doc. No. 192] (10th Cir. Apr. 25, 2025).
That claim, referred to as Defendant’s “heart-healthy diet claim”, is brought solely against
Defendant Elsie Persall.
1 Plaintiff is represented by counsel in the appellate proceeding related to this action that has been
abated pending further order by the Tenth Circuit. But Plaintiff appears pro se before this Court.
See David v. Crow, et al., Case No. 24-6167 (10th Cir.), Notice filed May 12, 2025 [Doc. No. 57]
(affirmatively stating that “[c]ounsel does not represent Mr. David before the district court, where
he continues to appear pro se.”).
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As addressed by the Tenth Circuit, the magistrate judge had denied as moot
Defendant Persall’s Motion to Dismiss that addressed this claim when in fact the Motion
to Dismiss was not moot. See Doc. No. 192 at 6. The magistrate judge also denied as moot
Plaintiff’s Motion requesting an extension of time to file a response to the Motion to
Dismiss. As a consequence, the claim was never ruled upon. The Tenth Circuit deemed
jurisdiction lacking due to the unadjudicated claim, abated the appeal pending further
order, and directed Plaintiff to do one of the following:
(1) obtain an order in the district court adjudicating his heart-healthy diet claim;
(2) obtain a Rule 54(b) certification from the district court, or
(3) voluntarily dismiss the heart-healthy diet claim with prejudice.
Id. at 12.
In response, Plaintiff filed the pending Motion. Plaintiff “moves for this Court to
enter or issue a final judgment or an Order resolving the ‘healthy heart diet’ claim to be a
final judgment” and determine “that there is no just reason for delay” under Rule 54(b) of
the Federal Rules of Civil Procedure. Mot. at 2. He argues that “any further delay will
prevent the healthy heart diet from being heard on appeal and could cause dismissal to all
other claims.” Id. (emphasis added).
Plaintiff’s request is unclear. On the one hand, he appears to request that this Court
proceed to address the merits of the heart-healthy diet claim and “resolve” that claim. On
the other hand, he appears to seek a Rule 54(b) certification. As to the latter, it appears
Plaintiff may be confused about the scope of relief under Rule 54(b). A Rule 54(b)
certification would not permit his heart-healthy diet claim to be heard in his previously-
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filed appeal. Instead, his other claims would proceed in that appeal and the heart-healthy
diet claim would remain pending in the district court.
Given these circumstances, the Court deems it prudent to direct Plaintiff to clarify
the relief he is requesting. The Court provides the following guidance.
If Plaintiff asks this Court to address the merits of his heart-healthy diet claim, the
Court will, after setting a briefing schedule, proceed to adjudicate that claim and,
ultimately, enter judgment on that claim.
If Plaintiff asks this Court for Rule 54(b) certification, he must show that
certification is proper under the governing standards. Plaintiff is advised that if the Court
were to grant his request for Rule 54(b) certification, all claims raised in his previously-
filed appeal would be subject to determination by the Tenth Circuit. But the heart-healthy
diet claim against Defendant Persall would remain pending before this Court and would
not be a part of that appeal.
Finally, if Plaintiff asks this Court to voluntarily dismiss the heart-healthy diet claim
with prejudice, all claims raised in his previously-filed appeal would be subject to
determination by the Tenth Circuit and no claim would remain pending for review by this
Court.
Plaintiff is directed to supplement his Motion and advise the Court which one of
these three alternatives he elects to pursue. Plaintiff shall file his supplement within
fourteen days of the date of this Order.
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IT IS SO ORDERED this 30th day of May, 2025.
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