# LISA R. HICKMAN v. JORDAN TURLEY, ANDY SIMMONS, RILEY BREEDLOVE, SHERIFF EMPLOYEE MOORE, CHRIS JACKSON, and GREGG MARTIN

> District Court, E.D. Oklahoma · February 20, 2026

URL: https://www.frixlaw.com/law-library/cases/11278215

## Case

- **Full name:** LISA R. HICKMAN v. JORDAN TURLEY, ANDY SIMMONS, RILEY BREEDLOVE, SHERIFF EMPLOYEE MOORE, CHRIS JACKSON, and GREGG MARTIN
- **Court:** District Court, E.D. Oklahoma
- **Decided:** February 20, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11278215

## How later opinions describe it (automated extraction)

- noting the only exception is habeas proceedings

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

LISA R. HICKMAN, )
)
Plaintiff, )
) Case No. CIV-24-407-JFH-GLJ
v. )
)
JORDAN TURLEY, ANDY SIMMONS, )
RILEY BREEDLOVE, SHERIFF )
EMPLOYEE MOORE, CHRIS )
JACKSON, and GREGG MARTIN, )
)
Defendants. )

REPORT AND RECOMMENDATION
This matter comes before the Court on Defendants’ varying motions to dismiss
Plaintiff’s First Amended Complaint. See Docket Nos. 41-42, 65. Plaintiff’s claims arise
out of an encounter she had with Muskogee County Sheriff employees on May 26, 2023.
See Docket No. 32. On January 23, 2025, the Court referred this case to the undersigned
Magistrate Judge for all further proceedings in accordance with jurisdiction pursuant to 28
U.S.C. § 636 and Fed. R. Civ. P. 72. See Docket Nos. 23, 66. For the reasons stated below,
Defendants Simmons, Breedlove, Martin, and Moore’s Motions to Dismiss [Docket Nos.
41-42] and Defendant Turley’s Motion for Partial Dismissal [Docket No. 65] should be
GRANTED. The undersigned Magistrate Judge further recommends that “Defendants’
Motion to Strike Plaintiff’s Supplemental Brief in Opposition to Defendants’ Partial
Motion to Dismiss [Dkt. 45]” [Docket No. 48] be DENIED.
I. Procedural Background
On October 23, 2024, pro se Plaintiff Lisa R. Hickman filed the Complaint in this

matter. While it is difficult to discern the precise claims being asserted in the original
Complaint, the Complaint set forth various allegations regarding her treatment at the hands
of Muskogee County Sheriff Andy Simmons and Officer Jordan Turley. Defendants
Simmons and Turley were served and promptly moved to dismiss on December 23, 2024.
Docket No. 17. After the motion was fully briefed, the undersigned Magistrate Judge
reviewed the motion and pleadings and invited Plaintiff to amend her Complaint on or

before April 4, 2025. Docket No. 38.
Plaintiff did not file her Amended Complaint until April 24, 2025, well outside the
deadline. Plaintiff also named four Defendants in addition to Defendants Simmons and
Turley – Undersheriff Gregg Martin, Sheriff employees Riley Breedlove and [] Moore, as
well as Chris Jackson. Although untimely, the undersigned Magistrate Judge nevertheless

found that Plaintiff provided sufficient cause to excuse the timeliness failure due to U.S.
Post Office delivery problems and permitted the filing to stand. Docket No. 38.
Defendants Simmons and Turley again moved to dismiss on July 31, 2025. Docket Nos.
41-42. The motions were fully briefed by August 27, 2025. On December 4, 2025, the
Court received notice from Plaintiff that she had received only that day certain envelopes

from the Court dated November 7, 2025, and November 10, 2025. See Docket No. 51.
These documents appear related to service of the additional defendants. Accordingly, on
January 5, 2026, the undersigned Magistrate Judge granted Plaintiff an extension of time
to February 9, 2026, in order to serve the remaining Defendants, and directed the Clerk’s
office to issue Civil Summons for the four remaining Defendants in light of Plaintiff’s in
forma pauperis status. Docket No. 53. Summons was issued and returns executed for three
of the four remaining Defendants.1 On January 27, 2026, Defendants Riley Breedlove,

Gregg Martin, and Sheriff Employee Moore moved to dismiss. Plaintiff filed an untimely
response on February 17, 2026. The undersigned Magistrate Judge declines to strike it as
untimely filed, but Plaintiff is cautioned that any future failure to comply with the Federal
Rules of Civil Procedure and/or this Court’s Local Rules may result is filings being
stricken. The motions are now fully briefed.

II. Amended Complaint Allegations
Plaintiff alleges in her Amended Complaint that Sheriff’s Deputy Jordan Turley
approached her home with “purported legal documents,” and when Plaintiff questioned
what he was doing, Turley “responded with force, slamming Plaintiff to the ground while
her hands remained behind her back.” Docket No. 32, p. 1. She alleges both Breedlove

and Moore taunted her and offered no medical assistance, and that Sheriff Simmons
interrogated her while EMS responders were taking her blood pressure. She alleges that
she is a tribal citizen and that Moore refused her request for a Cherokee Nation Lighthorse
officer because the Sheriff’s officers were cross-trained.
Plaintiff further alleges she was never shown “the warrant,” presumably one of the

“purported legal documents” cited by Plaintiff, and that the warrant is not available on the

1 The Clerk’s office issued summons for the final Defendant, Chris Jackson, but it was returned
unexecuted. See Docket Nos. 56, 58. This Court has issued a show cause order as to why this
Defendant should not be dismissed for failure to prosecute, as even the extended time for service
has expired. The Response is due March 12, 2026. See Docket Nos. 53, 58, & 68.
Oklahoma State Bureau of Investigation (“OSBI”) and National Crime Information Center
(“NCIC”) databases, nor did she get a response from a Freedom of Information Act

(“FOIA”) request. Id., pp. 1-2. She further alleges that body camera footage shows the
documents Deputy Turley held2 appeared to be a photocopy and not an original, and further
alleges he was improperly attempting to arrest her on a civil process document. Plaintiff
alleges she was hospitalized then admitted to the jail with dangerously high blood pressure,
that jail medical staff denied her repeated medical requests, that she was humiliated and
mocked while incarcerated, and that she was not allowed to leave after making bond. Id.,

p. 2. Plaintiff alleges she has ten “supporting exhibits[] available upon request.” Id, p. 5.
Plaintiff alleges numerous violations of the U.S. Constitution, federal law, and tribal
law in her Amended Complaint. As to the constitutional and federal claims, she alleges
violations of the First, Fourth, Sixth, Eighth, and Fourteenth Amendments, as well as a
violation of 42 U.S.C. § 1983; the Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1302;

and claims for medical malpractice and deliberate indifference, fabrication of evidence,
and false arrest. As to tribal law, Plaintiff alleges a violation of Cherokee Nation Criminal
Code Title 22, § 25, a statement of Cherokee Nation jurisdiction; due process and equal
protection violations under the Cherokee Nation Bill of Rights; and violation of cross-
deputization agreements. Plaintiff seeks $3.5 million in compensatory damages and $1.5

million in punitive damages. Id., pp. 4-5.
Plaintiff further filed a “Brief in Support of Newly Rewritten Complaint and

2 It appears Plaintiff is referring to body camera footage from her March 26, 2023, arrest.
Response to Prior Dismissal Motion.” Docket No. 35. In it, Plaintiff appears to be
responding to the Motion to Dismiss, Docket No. 17, filed by Defendants Simmons and

Turley prior to the filing of the Amended Complaint. Id. Because that Motion to Dismiss
has been deemed moot, and Plaintiff was given ample opportunity to respond to the
renewed motions to dismiss and the newly-filed one, the undersigned Magistrate Judge
does not rely on this filing with regard to the pending motions to dismiss.
III. Legal Standards
Under Fed. R. Civ. P. 8(a)(2), a complaint must contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Practically, this means that the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim
is plausible on its face when the complaint “pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“In considering whether the complaint’s allegations are sufficient, the court first eliminates
conclusory allegations, mere ‘labels and conclusions,’ and any ‘formulaic recitation of the
elements of a cause of action.’” Bledsoe v. Carreno, 53 F.4th 589, 606 (10th Cir. 2022)
(Iqbal, 556 U.S. at 678) (quoting Twombly, 550 U.S. at 555). “The court then accepts as

true all well-pled factual allegations and considers ‘whether they plausibly give rise to an
entitlement to relief.’” Id. (quoting VDARE Found. v. City of Colorado Springs, 11 F.4th
1151, 1159 (10th Cir. 2021)).
A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1) “generally take[s] one of two forms: (1) a facial attack on the
sufficiency of the complaint’s allegations as to subject matter jurisdiction; or (2) a
challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v.
McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (citation omitted). When jurisdiction is
challenged through a facial attack, the Court considers the allegations in the complaint to
be true. Id. When jurisdiction is challenged through a factual attack, the Court “may not

presume the truthfulness of the complaint’s factual allegations” and “has wide discretion”
to consider documentary and testimonial evidence. Holt v. United States, 46 F.3d 1000,
1003 (10th Cir. 1995), abrogated in part on other grounds by Cent. Green Co. v. United
States, 531 U.S. 425 (2001); see also Ratheal v. United States, 2021 WL 3619902, at *3
(10th Cir. Aug. 16, 2021) (“[W]hether a motion to dismiss must be converted to a motion

for summary judgment depends on whether resolution of the jurisdictional question
requires resolution of an aspect of the substantive claim.”) (quotation omitted).
When reviewing a motion for dismissal under Rule 12(b)(6), the Court “‘must
determine whether the complaint sufficiently alleges facts supporting all
the elements necessary to establish an entitlement to relief under the legal theory

proposed.’” Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc.,
680 F.3d 1194, 1201-1202 (10th Cir. 2011) (quoting Forest Guardians v. Forsgren, 478
F.3d 1149, 1160 (10th Cir. 2007)). “The nature of a Rule 12(b)(6) motion tests the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (emphasis
added). “While the 12(b)(6) standard does not require that Plaintiff establish a prima facie

case in her complaint, the elements of each alleged cause of action help to determine
whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d
1188, 1192 (10th Cir. 2012). In a case against multiple defendants, “it is particularly
important . . . that the complaint make clear exactly who is alleged to have done what to
whom, to provide each individual with fair notice as to the basis of the claims against him
or her, as distinguished from collective allegations. . . .” Robbins v. Oklahoma, 519 F.3d

1242, 1250 (10th Cir. 2008).
Finally, because Plaintiff is proceeding pro se, the undersigned Magistrate Judge
liberally construes her pleadings. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)
(requiring courts to liberally construe a pro se litigant’s pleadings); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (a court construes a pro se party’s pleadings liberally and

holds them “to a less stringent standard than [that applied to] formal pleadings drafted by
lawyers.”). Although pro se pleadings are held to a less stringent standard than ones drafted
by lawyers, a pro se litigant must “‘follow the same rules of procedure that govern other
litigants.’” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).

IV. Analysis
Defendants Simmons, Breedlove, Martin, and Moore all move for dismissal of all
claims against them. Docket Nos. 41, 65. Defendant Turley moves for partial dismissal,
requesting the Court dismiss all claims except the § 1983 claims for Fourth Amendment
false arrest and excessive force.3 Docket No. 42. All Defendants allege this Court lacks
subject matter jurisdiction over Plaintiff’s tribal claims, that Plaintiff fails to state a claim

against each of them as to the constitutional and federal claims brought pursuant to § 1983,
and that they are therefore entitled to qualified immunity. Plaintiff responds that she has
plausibly alleged specific, detailed facts as to Simmon and Turley, and that the personal
participation of Sheriff Simmons is clearly alleged. Furthermore, she contends that her
arrest was unlawful and her trauma is neither speculative nor exaggerated. Docket Nos.
43-44. In her response to the motion by Defendants Breedlove, Martin, and Moore,

Plaintiff explains that she is alleging failure to intervene and medical indifference as to
Breedlove, failure to intervene as to Moore, and “Ratification and Policy” as to Martin.
Docket No. 67, pp. 3-5, ¶¶ B, C, & E. She further alleges qualified immunity is
inappropriate at this stage because she has plausibly alleged excessive force, deliberate
indifference, and failure to intervene. Id., p. 5, ¶ IV.

A. Subject Matter Jurisdiction
Though not explicitly stated, Defendants appear to raise a facial attack on subject
matter jurisdiction as to Plaintiff’s tribal claims. District courts have subject matter
jurisdiction only as provided in 28 U.S.C. § 1331 (federal law claims) and § 1332 (diversity
of citizenship). Plaintiff here invokes subject matter jurisdiction under federal law. In

nearly identical briefs on this subject, Defendants all argue that this Court lacks subject

3 Defendant Turley explains in his Reply that the partial motion to dismiss applies to all claims
except the § 1983 claims for Fourth Amendment false arrest and excessive force. Docket No. 47,
p. 2.
matter jurisdiction over Plaintiff’s tribal claims, i.e., alleged violations of ICRA and
Cherokee Nation tribal law. “In reviewing a facial attack, the district court must accept the

allegations in the complaint as true.” Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221,
1225 (10th Cir. 2001). In 1978, the Supreme Court “held that the ICRA does not authorize
the maintenance of suits against a tribe nor does it constitute a waiver of sovereignty.”
Walton v. Tesuque Pueblo, 443 F.3d 1274, 1278 (10th Cir. 2006) (citing Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 59 (1978) (noting the only exception is habeas proceedings)).
Since 1980, however, the Tenth Circuit has recognized a narrow exception to this rule: An

exception to tribal sovereign immunity exists where “[1] the dispute involves a non-Indian
party; [2] a tribal forum is not available; and [3] the dispute involves an issue falling outside
internal tribal affairs.” Ordinance 59 Ass’n v. U.S. Dep’t of Interior Sec’y, 163 F.3d 1150,
1156 (10th Cir. 1998) (quoting Dry Creek Lodge, Inc. v. Arapahoe v. Shoshone Tribes, 623
F.2d 682, 685 (10th Cir. 1980) (“[I]n the absence of such other relief or remedy the reason

for the limitations disappears. The reason for the limitations and the references to tribal
immunity also disappear when the issue relates to a matter outside of internal tribal affairs
and when it concerns an issue with a non-Indian.”).
Defendants allege Plaintiff cannot meet the narrow Dry Creek exception because
the Cherokee Nation courts are available for these claims. In response to Defendant

Simmons,4 Plaintiff asserts that her claims are not solely tribal law claims, but specifically

4 Plaintiff does not address this argument in her response to Turley’s partial motion to dismiss, see,
Docket Nos. 42-43, nor in her response to the motion to dismiss filed by Defendants Breedlove,
Martin, and Moore, see Docket Nos. 65, 67. All Defendants raise the issue.
actionable through § 1983, that the tribal allegations are for background and context, and
that the basis of her claims is federal question jurisdiction and supplemental jurisdiction
for related claims. Because this court lacks subject matter jurisdiction, even supplemental
jurisdiction, under ICRA and for claims raised pursuant to tribal law, the undersigned
Magistrate Judge finds Plaintiff’s claims pursuant to ICRA and Cherokee Nation Law
should be dismissed for lack of subject matter jurisdiction.
B. Claims Pursuant to § 1983
Defendants also argue that the federal claims in the Amended Complaint should be
dismissed for failure to state a claim. Plaintiff’s Amended Complaint states, “Plaintiff
asserts violations of the United States Constitution, federal law, and tribal law, including
but not limited to:
Fourth Amendment — Unlawful seizure without a valid warrant (See Beck v. Ohio, 379 U.S. 89 (1964))
Eighth Amendment — Cruel and unusual punishment for deliberate medical indifference (See Estelle v.
Gamble, 429 U.S. 97 (1976))
Fourteenth Amendment — Deprivation of liberty and property without due process (See County of
Sacramento v. Lewis, 523 U.S. 833 (1998))
42 U.S.C. § 1983 — Deprivation of federally protected rights under color of law
Indian Civil Rights Act, 25 U.S.C. § 1302 — Rights applicable to residents of jurisdictions with tribal
intersection
First Amendment — Violation of Plaintiff's right to petition for tribal assistance and speak freely when
requesting a Cherokee Light Horse Officer
Fifth Amendment — Violation of due process through unlawful detention and deprivation of liberty
without justification
Sixth Amendment — Denial of access to appropriate representation during detainment and
questioning, including denial of a tribal officer
Fourteenth Amendment — Equal Protection Clause — Racial profiling and failure to afford Plaintiff
equal protection under the law due to her status as a Native American citizen
Fourth Amendment — Probable Cause Standard — Arrest without a judicially authorized warrant or
probable cause violates /llinois v. Gates, 462 U.S. 213 (1983)
Medical Malpractice and Deliberate Indifference — Under Farmer v. Brennan, 511 U.S. 825 (1994),
officials may be liable if they knowingly disregard a substantial risk of serious harm
Fabrication of Evidence and False Arrest — Citing Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001)
(en banc), due process is violated when officials deliberately fabricate evidence or make arrests without
lawful basis

-10-

Docket No. 32, p. 3. These are the entirety of the claims for relief raised pursuant to
Constitutional and/or federal law in Plaintiff’s Amended Complaint.

“A claim pleaded under § 1983 requires (1) deprivation of a federally protected right
by (2) an actor acting under color of state law.” VDARE, 11 F.4th at 1160 (internal
quotation marks omitted). “The traditional definition of acting under color of state law
requires that the defendant in a § 1983 action exercised power possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority of state
law.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1156 (10th Cir. 2016) (internal

quotation marks omitted) (noting this determination “is a mixed question of fact and law”).
In other words, the purpose of § 1983 is to “provide compensatory relief to those deprived
of their federal rights by state actors.” Felder v. Casey, 487 U.S. 131, 141 (1988). Any
Complaint must include “a short and plain statement of the claim showing that the pleader
is entitled to relief” sufficient to provide each Defendant with “fair notice” by informing

them of the actual grounds for the claim against each of them. Fed. R. Civ. P. 8(a)(2);
Robbins, 519 F.3d at 1248. Plaintiff’s Complaint alleges that “each named officer acted
without legal justification and with deliberate indifference to Plaintiff’s medical condition,
engaging in taunting, humiliation, and excessive force.” Docket No. 32, p. 3.
Although Plaintiff sets forth some factual allegations of potential conduct by some

Defendants, she largely fails to do so in a way that connects the alleged facts to any
potential cause of action, with the exception of Turley. See Robbins, 519 F.3d at 1250.
Plaintiff alleges Turley was the arresting officer at her home, arriving with “purported legal
documents” that she alleges was a civil process document, not an arrest warrant, and that
he slammed her to the ground with her hands behind her back. Docket No. 32, pp. 1-2.
She alleges Simmons “interrogated” her by asking, “Did you follow the process?” and that

such a question ignored the medical emergency she was having. Plaintiff alleges she asked
Moore to contact the Cherokee Nation Lighthorse force and he refused on the basis of being
cross-trained, i.e., cross-deputized, and that both Turley and Breedlove also asserted they
were cross-trained. Additionally, she alleges Breedlove shouted, “Your keys are going to
jail!” Finally, Plaintiff alleges Martin confirmed no public record of the purported warrant
related to her. Id., pp. 1-2.

As documented above, however, Plaintiff does not distinguish among Defendants
with any other facts or when listing out the twelve causes of action, even aside from the
three tribal claims. These allegations do not establish any sufficient cause of action as to
any Defendant except Turley with regard to her alleged false arrest and the alleged
excessive force, which are excluded from the present pending motions.

While Plaintiff attempts to allege a sufficient claim for denial of medical care as to
Simmons, she has failed to state a plausible claim and is unable to do so. “To state a
cognizable claim, Plaintiff must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Strain v. Regalado, 977 F.3d 984, 989
(10th Cir. 2020) (quotation omitted). “[D]eliberate indifference to a pretrial detainee’s

serious medical needs includes both an objective and a subjective component[.]” Id.; see
also Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir. 1985) (“[P]retrial detainees are
in any event entitled to the degree of protection against denial of medical attention which
applies to convicted inmates. Thus [under the Fourteenth Amendment] it is proper to apply
a due process standard which protects pretrial detainees against deliberate indifference to
their serious medical needs.”).

To establish the objective component, “the alleged deprivation must be
‘sufficiently serious’ to constitute a deprivation of constitutional dimension.”
Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). “A medical need is [objectively] serious
if it is one that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.” Clark[ v. Colbert, 895 F.3d 1258, 1267
(10th Cir. 2018)] (alteration in original and citation omitted). The subjective
component requires Plaintiff to establish that a medical “official knows of
and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and [s]he must also draw the
inference.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (alteration in
original) (quoting Farmer, 511 U.S. at 837).

Strain, 977 F.3d at 989-990. Plaintiff satisfies neither of these components in her Amended
Complaint. To satisfy the objective component, “[t]he plaintiff selects ‘what harm to
claim.’” Paugh v. Uintah Cnty., 47 F.4th 1139, 1155 (10th Cir. 2022) (quoting Mata, 427
F.3d at 753). The harm Simmons is alleged to have committed is unidentified on the face
of the Amended Complaint. As such, Plaintiff likewise fails to satisfy the subjective
component. Even liberally construing the Amended Complaint, Plaintiff alleges that EMS
had already arrived and the responders were treating her at the time Simmons was asking
her a question. She thus fails to allege, as to Simmons, a deprivation of any kind with
regard to medical treatment.
Furthermore, additional facts and/or allegations contained in Plaintiff’s responses
are insufficient to overcome dismissal, as the Court is required to look only within the “four
corners” of the Amended Complaint. Mobley, 40 F.3d at 340 (emphasis added).
Accordingly, the undersigned Magistrate Judge recommends that the two motions to
dismiss and the motion for partial dismissal be granted. Additionally, because Plaintiff

failed to sufficiently state a claim that Defendants Simmons, Breedlove, Moore, and Martin
violated a clearly established constitutional right, they are likewise entitled to qualified
immunity as to the claims brought pursuant to § 1983. Defendant Turley is entitled to
qualified immunity on all § 1983 claims except for the Fourth Amendment claims related
to false arrest and excessive force.

C. Defendants’ Motion to Strike
The same day Plaintiff filed her Responses in opposition to the Motions to Dismiss
filed by Simmons and Turley, she also filed Plaintiff’s Supplemental Brief in Opposition
to Defendants’ Partial Motion to Dismiss [Docket No. 45] (“Supplemental Response”).
Defendants Simmons and Turley now move to strike the Supplemental Response. Citing
Loc. Civ. R. 7.1(e) (“Supplemental briefs are not encouraged and may be filed only upon

motion and leave of Court.”), Defendants contend this should overcome the general rule
that a motion to strike is generally only applicable to a pleading, see Fed. R. Civ. P. 12(f)
(“The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”) (emphasis added). Construing Plaintiff’s
filing liberally, the undersigned Magistrate Judge declines to strike Docket No. 45. Plaintiff

is advised, however, that any future filings must comply with both the Federal Rules of
Civil Procedure and this Court’s Local Civil Rules, or risk the filing being stricken for
failure to comply.
D. Leave to Amend
Plaintiff has been on notice of the defects in her original Complaint, based on the

arguments in Defendants Simmons and Turley’s original motions to dismiss, as well as
signaled by this Court’s previous invitation to amend her Complaint. Fed. R. Civ. P.
15(a)(2) provides that the “court should freely give leave when justice so requires,” and
that is especially true “when the plaintiff is proceeding pro se.” Panicker v. State Dept. of
Agriculture, 498 Fed. Appx. 755, 757 (10th Cir. 2012); see also Gray v. Geo Grp., Inc., 727
Fed. Appx. 940, 948 (10th Cir. 2018) (“[D]enial of leave is generally justified only for

‘undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to
cure deficiencies by amendments previously allowed, or futility of amendment.’”) (quoting
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)). “Dismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff
cannot prevail on the facts [s]he has alleged and it would be futile to give h[er] an

opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (internal
quotation marks omitted). Because Plaintif’s Amended Complaint, filed after an invitation
to amend from this Court, failed to meet the standards of Rule 8(a), and because Plaintiff
cannot prevail on the facts she has alleged, except as to the remaining claims against
Defendant Turley, any amendment to allow further claim for damages for the same actions

would be futile. See Jefferson County School Dist. No. R–1 v. Moody’s Investor’s Services,
Inc., 175 F.3d 848, 859 (10th Cir.1999) (“Although Fed. R. Civ. P. 15(a) provides that leave
to amend shall be given freely, the district court may deny leave to amend where
amendment would be futile[.] A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.”); see also Minter v. Prime Equipment Co., 451
F.3d 1196, 1206 (10th Cir. 2006) (“Courts will properly deny a motion to amend when it

appears that the plaintiff is using Rule 15 to make the complaint ‘a moving target[.]’”)
(citation omitted)). The undersigned Magistrate Judge therefore recommends denying
leave to amend on the grounds of futility.
V. Conclusion
Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS that
Defendant Simmons’ Motion to Dismiss Plaintiff’s Amended Complaint and Brief in

Support [Docket No. 41], Defendant Turley’s Partial Motion to Dismiss Plaintiff’s
Amended Complaint and Brief in Support [Docket No. 42], and Defendants Martin,
Breedlove, and Moore’s Motion to Dismiss Plaintiff’s Amended Complaint and Brief in
Support [Docket No. 65] should be GRANTED. Any objection to this Report and
Recommendation must be filed within fourteen days. See 18 U.S.C. § 636(b)(1); Fed. R.

Civ. P. 72(b). Any objections and response shall each be limited to 10 pages and a reply is
permitted only with leave of court upon a showing of good cause.
Finally, the undersigned Magistrate Judge DENIES “Defendants’ Motion to Strike
Plaintiff’s Supplemental Brief in Opposition to Defendants’ Partial Motion to Dismiss
[Dkt. 45]” [Docket No. 48].

IT IS SO ORDERED this 20th day of February, 2026.

GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11278215. Public record. Not legal advice.