United States District Court, D. Utah, Northern Division
D. BRUCE OLIVER, Plaintiff,
DEPUTY LARRY G. NIELSON, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
N. Parrish District Judge
27, 2016, Plaintiff D. Bruce Oliver initiated this action by
filing a handwritten complaint in the Second District Court
for Davis County, Utah. ECF No. 2-1 at 2-9 (Mr. Oliver's
Initial Complaint). Mr. Oliver amended his complaint once
while the case was pending in state court and alleged causes
of action for: (1) unlawful search and seizure of Mr. Oliver,
(2) unlawful search and seizure of Mr. Oliver's property,
and (3) an injunction. First Am. Compl. ¶¶ 23-32,
ECF No. 2-1 at 21-22 (Mr. Oliver's First Amended
Complaint). Defendants removed the action to federal court on
October 28, 2016. ECF No. 2 (Notice of Removal).
February 9, 2017, Defendants filed a Rule 12(c) Motion for
Judgment on the Pleadings (ECF No. 7). Mr. Oliver, in
response to the Defendants' motion, requested leave to
amend to correct a typo: he mistakenly omitted “42
U.S.C. § 1983” from his second cause of action.
ECF No. 8 at 2 (Mr. Oliver's Objection and Response to
Defendant's [sic] Motion). After reviewing the
parties' briefing, Magistrate Judge Brooke C. Wells
issued a Report and Recommendation (ECF No. 13) on June 8,
2017. She recommended that the court: (1) dismiss all claims
against Davis County Jail, Davis County Sheriff's Office,
Davis County, and Sheriff Richardson; (2) dismiss Mr.
Oliver's first cause of action as to Deputy Peters and
Deputy Fielding; (3) grant Mr. Oliver leave to amend so that
he could include reference to 42 U.S.C. § 1983; and (4)
dismiss Mr. Oliver's third cause of action for injunctive
relief. ECF No. 13 at 8- 9. Mr. Oliver did not object to the
Report and Recommendation, and the court adopted the Report
and Recommendation in full on July 31, 2017. ECF No. 16 at 1
(Order Adopting Report and Recommendation).
Oliver filed his Second Amended Complaint (ECF No. 19) on
August 18, 2017. Mr. Oliver included reference to 42 U.S.C.
§ 1983 under his second cause of action. ECF No. 19 at
5. But Mr. Oliver also re-asserted all of the claims that had
been dismissed. ECF No. 19 at 4-5. In short, the only change
Mr. Oliver made in his Second Amended Complaint was to
include a reference to 42 U.S.C. § 1983; he did not
remove claims that the court dismissed.
Oliver, on August 18, 2017, also filed what was titled:
Motion to Amend Complaint Pursuant to Rule and Motion to
Alter or Ament [sic] Judgment Pursuant to Rule 59 (ECF No.
18). Mr. Oliver claimed that he never received a copy of the
Report and Recommendation, and he therefore requested that he
be allowed to respond to the Report and Recommendation. ECF
No. 18 at 3. Mr. Oliver also requested leave to amend his
complaint to include additional facts. ECF No. 18 at 3. But
Mr. Oliver did not attach a proposed amended complaint to his
reviewing the parties' briefings, Judge Wells issued a
second Report and Recommendation (ECF No. 24). She
recommended that the court: (1) deny Mr. Oliver's motion
to amend on the grounds that he did not attach a proposed
amended complaint to his motion to amend, as is required by
Local Rule 15-1; and (2) deny Mr. Oliver's motion to
amend or alter judgment on the grounds that Mr. Oliver failed
to show how the court erred when it adopted the first Report
and Recommendation. ECF No. 24 at 6. Mr. Oliver did not
object to the second Report and Recommendation. The court
adopted the second Report and Recommendation in full on
December 4, 2017. ECF No. 26 at 2 (Order Adopting Second
Report and Recommendation).
Oliver filed a Motion to Amend Second Amended Complaint
Pursuant to Rule 15 (ECF No. 28) on December 11, 2017. He
attached to the motion a proposed version of his Third
Amended Complaint (ECF No. 28-1). Mr. Oliver's proposed
Third Amended Complaint adds three new theories of liability
to his first cause of action: (1) unreasonably long
detention; (2) violation of freedom of speech; and (3)
violation of freedom of assembly. Third Am. Compl.
¶¶ 34-36. Defendants opposed Mr. Oliver's
motion to amend on the grounds that the motion was untimely
and amendment would be futile.
after opposing Mr. Oliver's motion to amend, Defendants
filed a Motion to Dismiss Second Amended Complaint on Behalf
of Defendants Nielson, Richardson, Peters, Fielding, and
County Entities (ECF No. 31). Defendants argued that Mr.
Oliver's Second Amended Complaint, which he had filed to
correct a typo, impermissibly re-asserted claims that the
court dismissed when it adopted the first Report and
the motion to amend and the motion to dismiss were referred
to Judge Wells under 28 U.S.C. § 636(b)(1)(B). Judge
Wells issued a third Report and Recommendation on March 6,
2018 (ECF No. 38). She recommends that the court: (1) deny
Mr. Oliver's motion to amend on the grounds that
amendment would unduly prejudice Defendants and the motion to
amend was untimely (i.e., Mr. Oliver offered no
adequate explanation for the delay); and (2) grant
Defendants' motion to dismiss. ECF No. 38 at 7. Mr.
Oliver objected to the third Report and Recommendation,
arguing that his motion to amend was timely and that
amendment would not unduly prejudice Defendants. ECF No. 39
at 2-5 (Mr. Oliver's Objection to Magistrate's Report
and Recommendation). Mr. Oliver did not object to the
recommendation that the court grant Defendants' motion to
party objects to portions of a magistrate judge's report
and recommendation, the district court reviews those portions
de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(3); see also In re Griego, 64 F.3d 580, 583-84
(10th Cir. 1995) (“De novo review is required
when a party files a timely written objection to the
magistrate judge's recommendation.”). “The
filing of objections to a magistrate's report enables the
district judge to focus attention on those issues- factual
and legal-that are at the heart of the parties'
dispute.” United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting
Thomas v. Arn, 474 U.S. 140, 147 (1985)). As such,
if neither party objects to certain portions of a report and
recommendation, the district court need only determine that
there is no “clear error” with respect to those
portions. See Fed. R. Civ. P. 72(b) advisory
committee's note (1983) (citing Campbell v. U.S.
Dist. Court for N. Dist. of Cal., 501 F.2d 196, 206 (9th
Mr. Oliver objects to third Report and Recommendation to the
extent it denies leave to amend. Specifically, Mr. Oliver
contends that the three theories added to his proposed
amended complaint-unreasonably long detention, violation of
freedom of speech, and violation of freedom of assembly-were
encompassed in his earlier complaints. Despite this, Mr.
Oliver does not explain why he waited over two years to move
to amend his complaint to include these
theories. The court therefore reviews de
novo the portions of the third Report and Recommendation
that deny leave to amend and reviews the remainder of the
third Report and Recommendation for clear error. Based on the
court's review of the record, the relevant legal
authority, and the third Report and Recommendation, the court
concludes that the third Report and Recommendation is a
correct application of the law to the facts. Accordingly, the
court adopts the third Report and Recommendation in full.
court also denies Mr. Oliver's motion to amend on the
grounds that he has not shown “good cause” to
modify the Scheduling Order, as required by Rule 16(b)(4),
nor has he moved to modify the Scheduling Order. See
Gorsuch Ltd., B.C. v. Wells Fargo Nat'l Bank
Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)
(“After a scheduling order deadline, a party seeking
leave to amend must demonstrate (1) good cause for seeking
modification under Fed.R.Civ.P. 16(b)(4) and (2) satisfaction
of the Rule 15(a) standard.”). The Scheduling Order
(ECF No. 20) set November 28, 2017, as the deadline for
filing motions to amend. But Mr. Oliver filed his motion for
leave to amend on December 11, 2017, twelve days after the
deadline. Mr. Oliver does not address whether there is good
cause to modify the Scheduling Order, and more importantly,
he does not move to modify the Scheduling Order. The typical
pro se litigant may not understand the need to
modify the Scheduling Order in these circumstances, but Mr.
Oliver is not the typical pro se litigant: he
appeared frequently before this court and practiced law for
over nineteen years. See Comm. on the Conduct of