REPORT AND RECOMMENDATION
SUZANNE MITCHELL, District Judge.
I. Relevant history.
Wayne Duke Kalbaugh (Plaintiff) filed this 42 U.S.C. § 1983 action on November 17, 2016, naming two Oklahoma City police officers, Defendants Jones and Wright in both their individual and official capacities, and alleging they subjected him to "excessive use of force and assault and battery" when taking him into custody on November 25, 2014, nearly two years earlier. Doc. 1, at 10.1
United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. Following initial screening of Plaintiff's complaint, the undersigned entered a report explaining that "`[s]uing individual defendants in their official capacities under § 1983 . . . is essentially another way of pleading an action against the county or municipality they represent.' Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978))." Doc. 11, at 4. The undersigned furher reported that "[i]n order to sufficiently allege such a claim, Plaintiff must effectively describe `official policy or custom [that] was both deliberately indifferent to his constitutional rights and the moving force behind his injury.'" Id. (quoting Porro, 624 F.3d at 1328). The undersigned concluded that "[b]ecause Plaintiff has not done so here, he fails to adequately state a claim upon which relief can be granted against Defendant Jones and Wright in their official capacities," id., and recommended the dismissal without prejudice of Plaintiff's claims against Defendants Jones and Wright in their official capacities. Id. at 4, 5. Judge Russell adopted that recommendation and granted Plaintiff "leave to file an amended complaint to set forth additional facts and claims, should he desire." Doc. 15, at 2.
After Plaintiff did so on January 12, 2017, Doc. 18, Judge Russell once again dismissed Plaintiff's claims against Defendants Jones and Wright in their official capacities, Doc. 48, finding that "[t]he allegation in the Amended Complaint that `[b]oth officers were on official duties and acting in both official and individual capacity for the Oklahoma City Police Department' is insufficient to meet his obligation of pleading a policy or custom." Id. at 4 (quoting Doc. 18, at 11).
II. Plaintiff's motion to file a second amended complaint.
Now, by motion filed on December 22, 2017 "per F.R.C.P. Rule 15(a), 15(c), 15(d) and 19(a)," Plaintiff requests "leave to amend/supplement the record of civil complaint by the addition of Defendants." Doc. 81, at 1. Specifically, Plaintiff seeks leave to add Defendants Jones and Wright in their official capacities.2 Id. at 4. He also seeks to add, individually and officially, both "Mustang Oklahoma police officer William Carpenter . . . who was a police officer when the event's took place giving rise to this civil rights complaint" and "Kevin Lee Deon . . . who was a national guardsman when the events took place giving rise to this civil rights complaint. . . ." Id. at 5. Plaintiff "asks leave to amend/supplement the record in accordance to information gained from the special report Doc. No. 30 and discovery." Id. at 6. Attached to Plaintiff's motion is his Amended Pro-Se Prisoners Civil Rights Complaint, id. Att. 1, along with various exhibits. Id. Atts. 2-18.
Defendants Jones and Wright object to Plaintiff's motion to add claims against them in their official capacity. Doc. 82. They submit that "[w]hile Plaintiff has repeatedly objected to dismissal of the official capacity claims, he has never identified an official policy or custom that was the cause of the alleged violations of constitutional rights." Id. at 2. They also oppose the addition of William Carpenter and Kevin Deon as Defendants on statute of limitations and futility grounds and generally object to the timing of Plaintiff's motion. Id. at 2-3.
Plaintiff did not file a reply to Defendants Jones and Wright's response in opposition to his motion to amend and supplement his complaint. See Local Civil Rule (LCvR) 7.1(i) ("[A] reply to new matter raised in the response may be filed within 7 days after the date the response was filed.").3 Nonetheless, on January 10, 2018, Plaintiff filed an "objection" to Defendants' response brief. Doc. 86. The undersigned has considered Plaintiff's "objection" on this single occasion only and has done so in the interests of judicial expediency. The undersigned cautions Plaintiff that although he is appearing pro se, "he nevertheless must follow the same rules of procedure that govern other litigants." Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Hereafter, the undersigned will not consider and will summarily strike any filing that is not consistent with the motion practice established by the Federal Rules of Civil Procedure or this Court's Local Civil Rules.4
Following a careful review of Plaintiff's motion, of his proposed amended complaint, of his objection to Defendants' response, and of the procedural rules governing amended and supplemental pleadings in this Court, the undersigned recommends that Judge Russell deny Plaintiff's Motion for Leave to Amend/Supplement the Record of Civil Complaint by the Addition of Defendants. Doc. 81.
III. Analysis.
A. Plaintiff's pro se status.
Plaintiff is appearing pro se, so the undersigned liberally construes his pleadings and papers and holds them to a less stringent standard than those drafted by a lawyer. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam)). Nonetheless, a court may not serve as Plaintiff's advocate, creating arguments on his behalf. See generally Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
B. Fed. R. Civ. P. 15.
1. Rule 15(a).
"While Rule 15[(a)(2)] provides that leave to amend a complaint shall be freely given when justice so requires, a district court may refuse to allow amendment if it would be futile." Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013). Through his proposed second amended complaint, Plaintiff once again seeks to assert claims against Defendants Jones and Wright in their official capacities. He alleges they "were both working in there official capacitiy's as Oklahoma City police officers representing the city of Oklahoma City, wearing there utility belts containing there duty weapons." Doc. 81, Att. 1, at 13. But this Court has already determined that Plaintiff's allegation in his amended complaint, Doc. 18, that "[b]oth officer's were on official duties, and acting in both official and individual capacity for the Oklahoma City Police Department," id. at 11, "is insufficient to meet his obligation of pleading a policy or custom." Doc. 48, at 4.
Plaintiff also proposes to add claims against two new Defendants, William Carpenter and Kevin Deon. See Doc. 81, at 5. He asks that they "be added pursuant to F.R.C.P. 15, and more specifically 15(c)" and alleges they "were also engaged and included in the unlawful conduct of the violation of plaintiff's constitutional rights which are the events that took place giving rise to this civil rights complaint." Id. at 3.
As noted, Defendants Jones and Wright "object to Plaintiff's request to add new defendants at this time." Doc. 82, at 2. They contend that
[t]his incident occurred on November 25, 2014. Therefore, under the two year statute of limitations governing §1983 claims, the time period in which Plaintiff could file a cause of action against the proposed additional defendants ended on November 25, 2016. Any claim filed against them would be subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and therefore amendment would be futile.
Id. Plaintiff responds that he "has only recently learned of the proposed Defendants violation of the law and his rights through discovery and being able to watch the video DOC NO. 32[.]" Doc. 86, at 3-4.5 In addition, he cites Oklahoma statutory authority pertaining to claims brought by an individual under a legal disability. Id. at 4.
The law governing a determination of the timeliness of Plaintiff's claims is long-settled. "State statutes of limitations applicable to general personal injury claims supply the limitations periods for § 1983 claims, but federal law governs the time of accrual of § 1983 claims." Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999) (citations omitted). Here, Oklahoma's two-year statute applies to Plaintiff's claims. See Meade v. Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988); Okla. Stat. tit. 12, § 95(A)(3). "Since the injury in a § 1983 case is the violation of a constitutional right, such claims accrue when the plaintiff knows or should know that his or her constitutional rights have been violated." Beck, 195 F.3d at 557 (quotation omitted). So, "[c]laims arising out of police actions toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur." Id. at 558 (quotation omitted).
Oklahoma permits tolling in limited circumstances:6
The first circumstance is the existence of a legal disability, which has been applied in cases where a plaintiff's competency is impaired or where the plaintiff has not yet reached the age of majority. The second circumstance is when defendants engage in false, fraudulent or misleading conduct calculated to lull plaintiffs into sitting on their rights. [Finally,] in the appropriate case, exceptional circumstances may justify tolling a statute of limitations.
Young v. Davis, 554 F.3d 1254, 1258 (10th Cir. 2009) (quotations, alterations, and citations omitted). Oklahoma's exceptions to a statute of limitations "are strictly construed and are not enlarged on consideration of apparent hardship or inconvenience." Resolution Trust Corp. v. Grant, 901 P.2d 807, 813 (Okla. 1995). The plaintiff bears "the burden of establishing a factual basis for tolling the statute." Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). Here, however, Plaintiff simply cites authority bearing on claims brought by an individual under a legal disability without claiming—and certainly not proving—that he is, or was, under one. See Doc. 86, at 4.
According to Plaintiff's proposed amended complaint, "11-25-2014 is the date of the events that took place giving rise to this civil complaint." Doc. 81, Att. 1, at 9. So, absent tolling, any claims against the proposed new defendants are barred by the expiration of the two-year statute of limitations on November 26, 2016. Because his requested amendments to add claims against two new Defendants "would be futile," Plaintiff has failed to establish a right to amend under Rule 15(a). Full Life Hospice, LLC, 709 F.3d at 1018.
2. Rule 15(c).
Plaintiff also seeks "leave to amend/supplement the record of civil complaint by the addition of Defendants per . . . Rule 15(c). . . ." Doc. 81, at 1. Despite specifically invoking this rule, Plaintiff fails to designate which of the rule's specific provisions he relies on and to explain why that particular provision would entitle him to the relief he requests. See Doc. 81. As noted, a court may not serve as Plaintiff's advocate, creating arguments on his behalf. See generally Yang, 525 F.3d at 927 n.1. "But it's clear that [Plaintiff] s[eeks] to add new claims against new [parties] . . . after the expiration of the statute of limitations." Glasser v. King, No. 17-1124, 2018 WL 327435, at *4 (10th Cir. Jan. 9, 2018). "[T]he addition or substitution of parties who had no notice of the original action is not allowed. Substitution of a completely new defendant creates a new cause of action. Permitting such procedure would undermine the policy upon which the statute of limitations is based." Id. (internal quotation marks omitted).
3. Rule 15(d).
Plaintiff also seeks leave to "amend/supplement the record of civil complaint by the addition of Defendants per . . . Rule 15(d). . . ." Doc. 81, at 1. But Plaintiff does not ask "to serve a . . . pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented," Fed. R. Civ. P. 15(d), and his reliance on this provision is inapt (emphasis added).
C. Fed. R. Civ. P. 19(a).
Finally, Plaintiff asks to amend under Fed. R. Civ. P. 19(a). Doc. 81, at 1. Nonetheless, Plaintiff does not suggest any reason why the federal procedural rule governing joinder is applicable here.
IV. Recommendation and notice of right to object.
For the stated reasons, the undersigned recommends that Judge Russell deny Plaintiff's Motion for Leave to Amend/Supplement the Record of Civil Complaint by the Addition of Defendants. Doc. 81.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before February 1, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not terminate the referral to the undersigned Magistrate Judge in the captioned matter.
