Arnett v. Gabriel et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
GLEN DELANE ARNETT JR., )
)
Plaintiff, )
)
v. ) Case No. CIV-24-185-SLP
)
MAJOR PHILLIP GABRIEL, et al., )
)
Defendants. )
O R D E R
Before the Court is the Report and Recommendation [Doc. No. 13] issued by United
States Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).
Plaintiff, a state prisoner appearing pro se, asserts eleven claims for violations of his federal
constitutional rights under 42 U.S.C. § 1983. Plaintiff’s claims are based on events that
allegedly occurred while he was a pretrial detainee at the Cleveland County Detention
Center. The Defendants in this action are various officers and employees of the Detention
Center: (1) Major Phillip Gabriel; (2) Disciplinary Officer K. Hamilton; (3) Lieutenant J.
Peek; (4) Master Sergeant FNU Hagen; (5) Administrative Clerk Lola Sowards; (6)
Cleveland County Detention Center; (7) Clerk G. Wheatley; (8) Cleveland County Sheriff
Chris Amason; (9) “unknown mailroom staff”; and (10) Administrative Supervisor Alyssa
Carter.
The Magistrate Judge recommends that the Court: (1) dismiss with prejudice all
claims against the Cleveland County Detention Center; (2) dismiss with prejudice all
official capacity claims for money damages and all individual capacity claims seeking
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declaratory or injunctive relief; (3) dismiss without prejudice claim one as against
Defendant Hamilton; (4) dismiss without prejudice claims two, four, five, six, seven, eight,
and ten in their entireties;1 (5) dismiss without prejudice the due process claim set forth in
claim three against Defendant Hamilton; and (6) dismiss claims nine and eleven against
Defendant Sowards. R&R [Doc. No. 13] at 1-2. Plaintiff has filed an Objection to the
R&R [Doc. No. 14]. Accordingly, the Court must make a de novo determination of those
issues specifically raised by the Objections, and may accept, modify, or reject the
recommended decision. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
In his Objection, Plaintiff references two distinct sections of the R&R: (1) where
the Magistrate Judge recommends dismissal of his fourth claim for violation of due process
through deprivation of personal property; and (2) the Magistrate Judge’s discussion of his
ninth claim for violation of his First Amendment right to free exercise of religion. See
[Doc. No. 14]. Plaintiff has waived any objection to any other conclusion or
recommendation in the R&R. See United States v. One Parcel of Real Property, Known
As: 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A] party’s objections to the
magistrate judge’s report and recommendation must be both timely and specific to preserve
an issue for de novo review by the district court”).
1 There is a typo in the opening paragraph of the R&R where the Magistrate Judge lists a group
of claims he recommends be dismissed entirely, which purports to include claim “Nine.” See
[Doc. No. 13] at 1. In the body of the R&R, the Magistrate Judge does not recommend dismissal
of claim nine entirely, but only as to one of the three Defendants against whom it is asserted. See
id. at 1, 21-24. The Magistrate Judge does, however, recommend full dismissal of Plaintiff’s tenth
claim, and reference to that claim is omitted in the opening summary of the R&R. See id.
Accordingly, it is clear from the substantive discussion that the Magistrate Judge meant to list
claim “Ten” among those recommended for dismissal in their entirety.
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As to his ninth claim, Plaintiff has not made a proper objection, and it appears his
reference to this claim is based on a misunderstanding of the R&R. In the body of the
R&R, the Magistrate Judge recommends dismissal of Plaintiff’s ninth and eleventh claims
as to Defendant Sowards, but not as to Defendants Peek, Hagan, and Amason.2 See R&R
[Doc. No. 13] at 22-23. Plaintiff generally “objects to the dismissal of claim nine” but does
not mention Defendant Sowards. See [Doc. No. 14] at 1. This misunderstanding is likely
the result of the typo in the opening paragraph of the R&R. See n. 1, supra. Given the
Magistrate Judge only recommends dismissal of that claim as to one Defendant, it is
unclear whether Plaintiff intends to object at all.
To the extent he does intend to object, Plaintiff only re-quotes the legal discussion
from the R&R and does not make any argument regarding Defendant Sowards. See [Doc.
No. 14] at 1. Accordingly, Plaintiff has not preserved the issue for review. See One Parcel,
73 F.3d at 1060 (a proper objection “is sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute. . .”). In any event, the
Court agrees with the Magistrate Judge that Plaintiff’s allegations regarding Defendant
Sowards are insufficient to show personal participation required for a § 1983 claim. See
R&R [Doc. No. 13] at 22-23.
The Court turns to Plaintiff’s fourth claim for violation of due process. Plaintiff
alleges his personal property was taken when he was moved to administrative segregation
and several items were missing when his property was returned. Am. Compl. [Doc. No.
2 As explained in the R&R, Plaintiff’s ninth and eleventh claims are both for infringement of his
right to free exercise of religion. [Doc. No. 13] at 21-23; Am. Compl. [Doc. No. 8] at 16-18.
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8] at 11. He alleges Defendants Hamilton and Hagen were involved in the taking of his
property and that Sheriff Amason “act[ed] under color of state law by the set forth policy
of taking/depriving [him] of [his] property.” Id. The Magistrate Judge recommends
dismissal of this claim because Plaintiff fails to identify any particular policy involved in
the taking of his property. See R&R [Doc. No. 13] at 15-16. The Magistrate Judge
alternatively notes that “[i]f the alleged taking of Plaintiff’s property was not pursuant to
an established jail policy, but was, rather, an ‘unauthorized intentional deprivation of
property,’ [his] claim would also fail because the State of Oklahoma provides post-
deprivation remedies for illegal loss of property through the state court system.” Id. at 16
n. 3.
Liberally construing his objection, Plaintiff appears to zero in on the Magistrate
Judge’s alternative conclusion in footnote 3. See [Doc. No. 14] at 1. He asserts “the state
post-deprivation procedure [was] unresponsive to the Plaintiff’s motion for declaratory and
injunctive relief filed in the Court Clerk’s Office of Cleveland County under CM-2023-
617.” Id. Plaintiff cites Freeman v. Dep’t of Corr., where the Tenth Circuit reversed
dismissal of a due process claim at the pleading stage because the plaintiff set forth
“specific facts suggesting that the state post-deprivation remedies were effectively denied
to him.” 949 F.2d 360, 362 (10th Cir. 1991). The Court finds Plaintiff’s objection without
merit.
First, Plaintiff does not object to the Magistrate Judge’s primary conclusion that he
failed to sufficiently allege a policy pursuant to which his property was taken. See Obj.
[Doc. No. 14] at 1. Despite his reference to a policy by Defendant Amason in the Amended
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Complaint, Plaintiff now appears to claim an unauthorized intentional deprivation of
property, asserting for the first time that Oklahoma’s post-deprivation procedures are
inadequate. This argument fails because “[i]ssues raised for the first time in objections to
the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996); see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th
Cir. 2001) (“[T]heories raised for the first time in objections to the magistrate judge’s report
are deemed waived.”); Lowe v. Allbaugh, 689 F. App’x 882, 884 (10th Cir. 2017) (finding
a claim “was presented for the first time in [the] objection to the magistrate judge’s report
and recommendation” and was therefore “too late, creating a waiver.”).3 For all these
reasons, Plaintiff’s objection is without merit, and the Court concurs with and adopts the
Magistrate Judge’s findings as to his fourth claim.
IT IS THEREFORE ORDERED that the R&R [Doc. No. 13] is ADOPTED to the
extent it recommends: (1) dismissal with prejudice of all claims against the Cleveland
County Detention Center; (2) dismissal with prejudice of all official capacity claims for
money damages and all individual capacity claims seeking declaratory or injunctive relief;
(3) dismissal without prejudice of claim one as against Defendant Hamilton; (4) dismissal
without prejudice of claims two, four, five, six, seven, eight, and ten in their entireties; (5)
3 Even if considered, Plaintiff’s vague allegation regarding a “motion for declaratory/injunctive
relief” allegedly ignored by the State in a 2023 case is insufficient to suggest absence of an
adequate post-deprivation remedy. See [Doc. No. 14] at 1; see also Durre v. Dempsey, 869 F.2d
543, 548 (10th Cir. 1989) (“In order to state a claim under § 1983, a complaint must allege facts
sufficient to show deprivation, in this case the lack of an adequate state remedy.”). Plaintiff does
not explain how the motion he refers to was a relevant post-deprivation procedure in the first place,
nor does he provide any details regarding the subject of the motion, who should have responded,
or how that was geared toward remedying his lost property. As such, Plaintiff has not alleged
sufficient facts regarding inadequacy of Oklahoma post-deprivation remedies.
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dismissal without prejudice of the due process claim against Defendant Hamilton set forth
in claim three; and (6) dismissal of claims nine and eleven against Defendant Sowards.4
All those claims are DISMISSED as set forth.
IT IS FURTHER ORDERED that the following Defendants are hereby dismissed
from this action: Lola Sowards, Cleveland County Detention Center, G. Wheatley, Alyssa
Carter, in addition to “John Doe” and “unknown (mailroom) staff/a.k.a. John/Jane Doe”
referenced in Plaintiff’s second and fifth claims.
IT IS FURTHER ORDERED that following claims remain pending: (1) Plaintiff’s
first claim for First Amendment retaliation against Defendant Gabriel; (2) Plaintiff’s third
claim for equal protection against Defendants Hamilton and Hagan; (3) Plaintiff’s ninth
claim for violation of his right to free exercise of religion against Defendants Peek, Hagan,
and Amason; (4) Plaintiff’s eleventh claim for violation of his right to free exercise of
religion against Defendants Peek, Hagan, and Amason.5
IT IS FURTHER ORDERED that this matter is re-referred to the Magistrate Judge
for further proceedings.
4 The Magistrate Judge also recommends that the Court find that Plaintiff has stated a First
Amendment retaliation claim against Defendant Gabriel in claim one; that Plaintiff has stated a
claim against Defendants Hamilton and Hagen for violation of equal protection as set forth in claim
three; and that Plaintiff has stated a First Amendment free exercise claim against Defendants Peek,
Hagen, and Amason in claims nine and eleven. [Doc. No. 13] at 1-2. None of these Defendants
have appeared yet in this action, nor has a special report been ordered. At this time, the Court
declines to affirmatively find these allegations are sufficient to state a claim.
5 Plaintiff filed a Motion [Doc. No. 16] requesting issuance of summons and service for all
defendants named in this action, and another more recent Motion [Doc. No. 17] requesting
summons and service as to the “five (5) remaining Defendants.” The first Motion [Doc. No. 16]
is DENIED as MOOT, and the second Motion [Doc. No 17] remains pending upon re-referral of
this matter to the Magistrate Judge.
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IT IS SO ORDERED this 3rd day of June, 2025.
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