McLemore

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

JARED MCLEMORE,

Plaintiff,

v. Civil No. 24-495 (FAB)

SHERIFF OF PITTSBURG COUNTY,

in his official capacity;

MICHAEL WILLIAMSON, and DALTON

BARONE,

Defendants.

OPINION AND ORDER

BESOSA, Senior District Judge.1

Before the Court are three Reports and Recommendations

(“R&Rs”) issued by U.S. Magistrate Judge D. Edward Snow (Docket

No. 48; Docket No. 49; Docket No. 50) regarding defendants’ motions

to dismiss (Docket No. 26, Dalton Barone; Docket No. 27, Michael

Williamson; Docket No. 28, Sheriff of Pittsburg County.) This

case is before the Court by designation pursuant to 28 U.S.C.

§ 292(d). See Docket No. 56.

For the reasons set forth below, the Court REJECTS the

reasoning in the R&Rs addressing Dalton Barone (“Barone”)’s and

Michael Williamson (“Williamson”)’s motions to dismiss. Defendant

Barone’s and defendant Williamson’s motions to dismiss are DENIED

1 Senior United States District Judge for the District of Puerto Rico, sitting

by designation.

Civil No. 24-495 (FAB)___ __ 2

IN PART. (Docket No. 26; Docket No. 27.) The Court also REJECTS

the reasoning in the Sheriff of Pittsburg County (“Sheriff”)’s

R&R. Defendant Sheriff’s motion to dismiss, however, is GRANTED.

(Docket No. 28.)

I. Background

Plaintiff Jared McLemore brought this suit against

(1) Michael Williamson, an officer at the Pittsburg County

Sheriff’s Office in his individual capacity, (2) Dalton Barone, a

sergeant in the Pittsburg County Sheriff’s Office in his individual

capacity, and (3) the Sheriff of Pittsburg County, in his official

capacity. (Docket No. 22.)

Around 1:15 a.m. on December 25, 2022, McLemore was pulled

over for a lane change violation. Id. He submitted to a

breathalyzer test and registered a 0.081 Blood Alcohol Content,

which is over the legal limit. Id. He was transported to the

Pittsburg County Jail for misdemeanor driving under the influence

(“DUI”). Id. McLemore alleges that he was familiar with the jail

and the Pittsburg County Sheriff’s Office because he had done some

IT work for it in the past, and his father had been a deputy at

the Sheriff’s Office as well. Id.

When he was being booked, McLemore claims that he was calm

and respectful. Id. He did, however, try to explain his

connections to Williamson and Barone, and asked them if they knew

Civil No. 24-495 (FAB)___ __ 3

who he was. Id. McLemore alleges that this question angered

Williamson and Barone, and that they decided to humiliate him in

retaliation. Id. at pp. 3-4. He alleges that to humiliate him,

Williamson and Barone took him to an observation cell where the

temperature was 50 degrees Fahrenheit, ordered him to strip naked

and left him there for eight hours without his clothes or a

blanket. Id. at p. 4. He repeatedly complained to Williamson and

Barone that he was freezing cold and requested clothes or a blanket

but he was mocked and his requests were refused. Id.

Additionally, McLemore alleges that while he was taking off his

clothes in the observation cell, Williamson shoved him on the back

of his shoulder causing him to fall on his wrist, causing him

substantial pain. Id. He alleges that Williamson’s and Barone’s

conduct caused him to suffer “physical injuries, mental and

physical pain and suffering.” Id. at p. 5. He raises Fourteenth

Amendment and Fourth Amendment claims against Barone and

Williamson.

McLemore also raises claims against the Sheriff. He alleges

that the Sheriff has written policies that are unconstitutional on

their face because they give officers “unfettered authority and

discretion to inflict ‘disciplinary action’ on pretrial detainees

for any conduct [the officers] deem to be insubordinate or

disrespectful.” Id. Specifically, McLemore alleges that “Jail

Civil No. 24-495 (FAB)___ __ 4

Rules 15 and 16 require ‘disciplinary action’ any time a pretrial

detainee does not follow an order or is disrespectful to staff.”

Id. at p. 6. He alleges that the Sheriff “has utterly failed to

train and supervise [the] jailers with respect to the

constitutional treatment of pretrial detainees.” Id. He alleges

that there is a causal link between the unconstitutional Jail Rules

and the violation of his Fourteenth Amendment rights. Id.

On March 11, 2025, all three defendants moved to dismiss the

claims against them. (Docket No. 26; Docket No. 27; Docket

No. 28.) McLemore opposed (Docket No. 35; Docket No. 36; Docket

No. 37), and defendants replied. (Docket No. 40; Docket No. 41;

Docket No. 42.) The motions were referred to Magistrate Judge D.

Edward Snow. (Docket No. 43.) On March 5, 2026, Magistrate Judge

Snow issued two R&Rs, one for Barone’s motion to dismiss (Docket

No. 48), and another for Williamson’s. (Docket No. 49.) On

March 18, 2026, Magistrate Judge Snow issued a third R&R for the

Sheriff’s motion to dismiss. (Docket No. 50.) The R&Rs

recommended that McLemore’s claims should all be dismissed. Id.

McLemore objected and defendants opposed the objections. (Docket

No. 53; Docket No. 54; Docket No. 55; Docket No. 58; Docket No. 59;

Docket No. 60.)

McLemore makes the same objections to Barone’s and

Williamson’s R&R. He asserts that the magistrate judge erred by

Civil No. 24-495 (FAB)___ __ 5

misapplying the Rule 12(b)(6) standard, and that he misapplied

civil rights law. (Docket No. 53 at p. 3; Docket No. 54.) He

argues that he “sufficiently alleged that his treatment . . . was

not rationally related to a legitimate governmental objective or

excessive in relation to that purpose.” (Id. at p. 5; Docket

No. 54.) McLemore also argues that the magistrate judge erred

because he failed to address the crux of his complaint – that he

was stripped and left naked in a cold cell for eight hours. Id.

McLemore also objects to the magistrate judge’s finding in

the Sheriff’s motion to dismiss. (Docket No. 55.) He argues that

the magistrate judge erred in finding that there was no underlying

constitutional violation supporting the Sheriff’s liability

pursuant to Monell v. New York City Dept. of Social Servs., 436

U.S. 658 (1977), and that the magistrate judge also erred by

relying on materials outside the Amended Complaint and by weighing

competing evidence. Id. at pp. 3, 8. Essentially, McLemore argues

that the magistrate judge treated the motion as one for summary

judgment without converting it into one, and then failed to view

the evidence in the light most favorable to the non-moving party,

himself. Id.

II. Legal Standard

A district court may refer a pending motion to a magistrate

judge for a report and recommendation. See 28 U.S.C.

Civil No. 24-495 (FAB)___ __ 6

§ 636(b)(1)(B); Fed. R. Civ. P. 72(a). Any party adversely

affected by the report and recommendation may file written

objections within fourteen days of being served with the magistrate

judge’s report. 28 U.S.C. § 636(b)(1). “A party that files a

timely objection is entitled to a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which a specific objection is made.” Lowery

Wilkinson Lowery, LLC v. Illinois, No. 25-CV-22-RAW, 2025 U.S.

Dist. LEXIS 268063, at *3 (E.D. Okla. Dec. 31, 2025) (citing United

States v. Raddatz, 446 U.S. 667, 673 (1980)). “The objections

must specifically identify those findings or recommendations to

which objections are being made” and “[t]he district court need

not consider frivolous, conclusive, or general objections.” Id.

(citing Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir.

1987)). In conducting its review, a court is free to “accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(a)(b)(1).

Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule

12(b)(6)”), a defendant may move to dismiss an action for failure

to state a claim upon which relief can be granted. See Fed. R.

Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint

must contain enough factual matter “to state a claim to relief

Civil No. 24-495 (FAB)___ __ 7

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). A court must decide whether the complaint

alleges facts which “raise a right to relief above the speculative

level.” Id. at 555. “At the motion-to-dismiss stage, [a court]

must accept as true all well-pleaded factual allegations in a

complaint and view these allegations in the light most favorable

to the plaintiff.” Cressman v. Thompson, 719 F.3d 1139, 1141 (10th

Cir. 2013) (internal quotation marks and alterations omitted).

III. Discussion

The Court will first discuss McLemore’s objections to the

R&Rs issued for Barone’s and Williamson’s motions to dismiss.

After discussing the alleged errors there, the Court will analyze

McLemore’s objections to the R&R for the Sheriff’s motion to

dismiss.

A. Barone’s and Williamson’s Motions to Dismiss

McLemore asserts that the magistrate judge erred in

misapplying the Rule 12(b)(6) standard and that he misapplied civil

rights law. (Docket No. 53 at p. 3; Docket No. 54.) He argues

that he “sufficiently alleged that his treatment . . . was not

rationally related to a legitimate governmental objective or was

excessive in relation to that purpose.” Id. at p. 5; Docket

No. 54. McLemore also argues that the magistrate judge erred

because he failed to address the crux of the complaint – that he

Civil No. 24-495 (FAB)___ __ 8

was stripped and left naked in a cold cell for eight hours. Id.

The Court agrees.

i. Constitutional Basis for McLemore’s Mistreatment

Claim

The Court’s first task is to resolve which

constitutional provision governs this case. In essence, McLemore

raises a mistreatment claim under the Fourth and Fourteenth

Amendments. The choice of amendment matters because mistreatment

while in state custody can be challenged under the Fourth, Eighth,

and Fourteenth Amendments “depending on where the [individual]

finds himself in the criminal justice system – and each carries

with it a very different legal test.” Porro v. Barnes, 624 F.3d

1322, 1325 (10th Cir. 2010); Colbruno v. Kessler, 928 F.3d 1155,

1161 (10th Cir. 2019). It is important to note that “almost any

federal constitutional claim against a state official is, strictly

speaking, a claim under the Fourteenth Amendment.” Colbruno, 928

F.3d at 1161. When dealing with state officials, however, “it is

common to say that a claim is based, say, on the First Amendment,

Fourth Amendment, Sixth Amendment, or Eighth Amendment.” Id. On

the other hand, a pure Fourteenth Amendment claim is not based on

the incorporation of the Bill of Rights into the Fourteenth

Civil No. 24-495 (FAB)___ __ 9

Amendment, but rather the Due Process Clause in the amendment

itself. See id.

Having cleared up how the Court will discuss the

amendments, the Court turns to analyze which constitutional

amendment applies here. The Fourth Amendment prohibits

“unreasonable searches and seizures.” U.S. Const. Art. IV. It

covers “any claim that arises in the context of an arrest or

investigatory stop of a free citizen” and continues to apply until

there is “a judicial determination as to whether there was probable

cause to charge an arrestee with a crime.” Geddes v. Weber Cnty.,

No. 20-4083, 2022 WL 3371010, at *4 (10th Cir. Aug. 16, 2022)

(internal quotations omitted). Once there is a determination that

probable cause exists, the claims are covered by “the due process

clauses of the Fifth or Fourteenth Amendments and their protection

against arbitrary governmental action by federal or state

authorities[.]” Colbruno, 928 F.3d at 1162. At this stage, the

government may detain a defendant to ensure his presence at trial

and may subject him to the restrictions and conditions of the

detention facility as long as those conditions and restrictions do

not amount to punishment or otherwise violate the Constitution.”

Bell v. Wolfish, 441 U.S. 520, 536-37 (1979). After a defendant

has been convicted, the Eighth Amendment applies and “protect[s]

against unjustifiable conditions of confinement, such as ‘the

Civil No. 24-495 (FAB)___ __ 10

unnecessary and wanton infliction of pain.’” Colbruno, 928 F.3d

at 1162 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).

Here, McLemore was arrested for misdemeanor DUI.

He was placed in an observation cell to sober up and ordered to

strip naked and kept naked for eight hours in the cell. He does

not allege there was a judicial determination of probable cause or

that he was convicted of a crime. When a person has been arrested

and has not had a judicial determination of probable cause, like

McLemore, the Court turns to the Fourth Amendment to evaluate a

claim of mistreatment. Accordingly, the Court assesses his claim

under the Fourth Amendment.2

Because the magistrate judge only addressed

Barone’s and Williamson’s motions to dismiss as conditions of

confinement claim under the Fourteenth Amendment, the Court

REJECTS the R&R’s reasoning. Because the Fourteenth Amendment

claim based on the due process clause itself is not the proper

claim, the Court dismisses McLemore’s Fourteenth Amendment claim.

See Geddes, 2022 WL 3371010. This dismissal does not end our

inquiry because McLemore also raises a Fourth Amendment claim, to

2 Although McLemore’s claim could fit under the Fourteenth Amendment, his claim

is better analyzed through the Fourth Amendment because he was arrested. See

Graham v. Connor, 490 U.S. 386, 395 (1989) (“Because the Fourth Amendment

provides an explicit textual source of constitutional protection against this,

or of physically intrusive governmental conduct, that Amendment, not the more

generalized notation of ‘substantive due process,’ must be the guide for

analyzing these claims.”).

Civil No. 24-495 (FAB)___ __ 11

which both Williamson and Barone argued for dismissal. See Docket

No. 26; Docket No. 27.

ii. Mistreatment under the Fourth Amendment

1. Stripped Naked

Typically, when a mistreatment claim is raised

in the Fourth Amendment context, it is for use of excessive force,

“but the interests protected by the Fourth Amendment are not

confined to the right to be secure against physical harm; they

include liberty, property and privacy interests – a person’s sense

of security and individual dignity.” Holland ex rel. Overdorff v.

Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001); see also

Colbruno, 928 F.3d at 1161-62. Accordingly, “the Fourth Amendment

requires an examination of the reasonableness of the manner in

which a search or seizure is conducted.” Id. at 1188.

“To determine the constitutionality of a

seizure ‘we must balance the nature and quality of the intrusion

on the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the

intrusion.’” Id. (citing United States v. Place, 462 U.S. 696,

703 (1983)). The reasonableness of the seizure depends on when a

seizure is made and how it is carried out. Id. A court looks at

whether the totality of the circumstances justified the seizure,

without regard to an officer’s underlying intent or motivation.

Civil No. 24-495 (FAB)___ __ 12

Id.; Phillips v. Sheridan Cnty. Sheriff’s Off., Case No. 12-cv-

153-ABJ, 2015 WL 13689047, at *6 (D. Wyo. May 4, 2015).

“[R]elevant factors include the crime’s severity, the potential

threat posed by the suspect to the officer’s and others’ safety,

and the suspect’s attempts to resist or evade arrest.” Id.

Here, McLemore was arrested for driving under

the influence and transported to jail. (Docket No. 22 at p. 3.)

He alleges that he was calm and respectful during the booking

process. Id. He was placed in an observation cell, and once

inside Williamson and Barone forced him to strip naked. Id. at 4.

McLemore complied and was completely naked in the observation cell

with temperatures of approximately 50 degrees with no clothes or

blankets. Id. He was left naked in the observation cell for eight

hours. And no matter how much he complained and requested either

his clothes or a blanket, his requests apparently went unanswered.

Williamson and Barone argue that McLemore

fails to state a claim for which relief could be granted because

there was no physical contact, and because he fails to allege facts

that show that the search was performed to humiliate him rather

than for a legitimate purpose. (Docket no. 26 at p. 8.) These

arguments miss the mark. First, the issue is how his seizure was

executed, i.e., that he was stripped naked and remained so for

eight hours in an observation cell with a temperature of 50 degrees

Civil No. 24-495 (FAB)___ __ 13

- not the seizure’s purpose or that there was no physical

component. See Holland, 268 F.3d at 1194.

Williamson and Barone cite behind Florence v.

Bd. of Chosen Freeholders of Cnty. of Burlington3 to argue that

the search was reasonable because a pretrial detainee can be

searched when he enters a jail. Apart from the fact that what is

being called unreasonable is the seizure – not the search -

Williamson and Barone leave out an important detail. For a strip

search to be considered reasonable, a determination must have been

made that the defendant will be held in the general population

cell. See Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d

1204, 1235-39 (10th Cir. 2020). A jailer cannot simply strip

search anyone who enters a jail as a routine practice. That would

render Florence hollow. See Hinkle, 962 F.3d at 1237-38.

Williamson and Barone also argue that McLemore

fails to allege any words, actions or circumstances that suggest

that their actions were motivated by McLemore’s “Do you know who

I am?” comment. But this argument is not necessary. The analysis

under the Fourth Amendment only requires the Court to ask if under

a totality of the circumstances, the officer’s actions were

reasonable. Here, McLemore was arrested for driving under the

3 566 U.S. 318 (2012)

Civil No. 24-495 (FAB)___ __ 14

influence and taken to jail. Once there, he was apparently calm

and respectful while attempting to explain his connections to the

jail. Subsequently, Williamson and Barone placed McLemore in an

observation cell and ordered him to strip naked and kept him in

the cell naked without a blanket or clothes for eight hours. This

action is not reasonable. He was alone in the observation cell

and not a threat to the officers or to others. Accordingly, the

Court finds that McLemore has sufficiently pled facts for his claim

that his Fourth Amendment rights were violated.

Finally, Williamson and Barone argue that

McLemore fails to allege that they had personal participation in

the constitutional violation. (Docket No. 26 at p. 4; Docket

No. 27 at p. 11.) They argue that they do not control the

temperature of the jail or the cell. Id. This argument again

misconstrues the alleged constitutional violation. It is not only

that the temperature in the observation cell was cold, but that

both defendants also ordered McLemore to strip naked and kept him

naked for eight hours in the cold. Accordingly, McLemore’s

allegations state that both Williamson and Bartone personally

participated in the alleged constitutional violations.

2. Shoving to the Floor

McLemore also alleges that Williamson shoved

him on the shoulder while he was naked and that he fell to the

Civil No. 24-495 (FAB)___ __ 15

cold floor, injuring his wrist. Substantively, this conduct

alleges excessive force under the Fourth Amendment. “A police

officer violates an arrestee’s . . . Fourth Amendment right to be

free from excessive force during an arrest if the officer’s actions

were not ‘objectively reasonable’ in light of the facts and

circumstances confronting him.” Estate of Ceballos v. Husk, 919

F.3d 1204, 1213 (10th Cir. 2019). In assessing the reasonableness

of the use of force, a court looks to factors similar to those

used to assess the reasonableness of a seizure: “(1) the severity

of the crime at issue, (2) whether the suspect poses an immediate

that to the safety of the officers or others, and (3) whether the

suspect is actively resisting arrest or attempting to evade arrest

by flight.” McCoy v. Meyers, 887 F.3d 1034, 1045 (10th Cir. 2018).

“While not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment, pushes and shoves, like other police conduct, must be

judged under the Fourth Amendment standard of reasonableness.”

Holland, 268 F.3d at 1194.

Here, McLemore was arrested for misdemeanor

driving under the influence. He was arrested and taken to jail,

where he was calm and respectful during the booking process.

(Docket No. 22 at p. 3.) McLemore was already in an observation

cell when he was ordered to strip; there was no safety concern to

Civil No. 24-495 (FAB)___ __ 16

the officers or to the general population because “holding a DUI

arrestee in a holding cell (“dry cell”) for eight hours [is]

commonly done to allow time for the detainee to sober up and

prevent harm to the detainee or others prior to introduction into

the general population.” (Docket No. 41 at p. 7.) According to

defendants’ own argument, McLemore was separated from the general

population and did not pose a threat. Additionally, Williamson

also does not allege McLemore was resisting arrest or attempting

to evade arrest. Therefore, McLemore has alleged sufficient facts

for his Fourth Amendment excessive force claim.

iii. Qualified Immunity

Having established that McLemore has

sufficiently pled Fourth Amendment violations, the Court turns to

whether defendants are nonetheless entitled to qualified immunity.

“Qualified immunity insulates officials from civil liability so

long as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Hinkle, 962 F.3d at 1218 (internal quotation

marks omitted). “Ordinarily[,] [when] there is no precedent of

the Supreme Court or [the Tenth Circuit of Court of Appeals]

declaring that there would be a violation under closely similar

facts[,]” a court could find that there is no clearly established

law. Colbruno, 928 F.3d at 1165. “[A] constitutional violation[,

Civil No. 24-495 (FAB)___ __ 17

however,] may be so obvious that similar conduct seldom arises in

our cases, and it would be remarkable if the most obviously

unconstitutional conduct should be the most immune from liability

only because it is so flagrantly unlawful that few dare its

attempt.” Id. (internal quotation marks omitted). Here, Fourth

Amendment rights to unreasonable searches and seizures are clearly

established, and both Florence and Hinkle have been on the books

for years. See Pray v. Sedgwick Cnty., Case No. 12-cv-01231-TC,

2025 U.S. Dist. LEXIS 261919, at *27-28 (“The facts in Hinkle are

sufficient to put any reasonable officer on notice that it is

unlawful to strip search every arrestee who enters the booking

area before a determination to house the arrestee in general

population.”) Although Florence and Hinkle pertain to a strip

search and not the manner of the execution of a seizure, as is the

issue here, the Court finds that these two cases provide a ceiling

as to what would be considered unreasonable in a Fourth Amendment

context. Florence and Hinkle clearly establish that ordering an

individual who is not destined to be in the general population to

strip naked is unreasonable. Accordingly, the manner and duration

in which Williamson and Barone seized McLemore – ordering him to

strip and keeping him naked for eight hours in a cold cell – cannot

be excused through qualified immunity. Nor is it a defense that

the complaint fails to allege that Barone and Williamson knew

Civil No. 24-495 (FAB)___ __ 18

McLemore would not be placed in the general population. Even if

we look at this as simply a strip search, for it to be

constitutionally acceptable, Williamson and Barone must have

already determined that McLemore would be placed in the general

population. McLemore’s allegations, interpreted in the light most

favorable to him, suggest that this may not have been the case.

Accordingly, the Court DENIES IN PART

Williamson’s and Barone’s motions to dismiss.

B. Sheriff of Pittsburg County’s Motion to Dismiss

The Court now turns to the Sheriff’s motion to dismiss.

The magistrate judge recommended dismissing the claims against the

Sheriff because he found that McLemore was not subject to a

constitutional violation, that there was no Municipal/Monell

liability, and that McLemore failed to show that the Sheriff should

have known that the policies facially violate the Fourteenth

Amendment. (Docket No. 50 at p. 5-6.) McLemore objects to the

magistrate’s recommendations. Specifically, he argues that the

magistrate judge erred by relying on materials outside the Amended

Complaint and weighing competing evidence. (Docket No. 55 at

p. 8.) Essentially, McLemore argues that the magistrate judge

improperly treated the motion to dismiss as one for summary

judgment without converting it into one. Id. The Court agrees.

Civil No. 24-495 (FAB)___ __ 19

When reviewing a motion to dismiss under Rule 12(b)(6),

the court generally may not look beyond the four corners of the

complaint. Wally v. City and Cnty. of Denver, 932 F.3d 1277, 1286

n.1 (10th Cir. 2019). There are, however, three exceptions to

this rule: (1) “documents that the complaint incorporates by

reference,” i.e., documents are attached as exhibits to the

complaint; (2) “documents referred to in the complaint if the

documents are central to the plaintiff’s claim and the parties do

not dispute the documents’ authenticity;” and (3) matters “which

the court may take judicial notice.” Gee v. Pacheco, 627 F.3d

1178, 1186 (10th Cir. 2010). “To consider a matter outside the

pleadings, the court must convert the Rule 12(b)(6) motion into

one for summary judgment under Rule 56.” J.D. Heiskell Holdings,

LLC v. Willard Dairy, LLC, 750 F. Supp. 3d 1289, 1293 (D.N.M.

2024).

With his motion to dismiss, the Sheriff submitted a copy

of what he argues to be the jail rules that were in effect when

McLemore was in jail. The magistrate judge found, however, that

the Sheriff “provided clear evidence that the Jail Rules [McLemore]

relies upon are not the Jail Rules that were in effect at the time

of [McLemore’s] booking.” (Docket No. 50 at p. 7.) The Court

rejects this finding. It seems that the magistrate judge

determined that the rules were included as an exhibit in the

Civil No. 24-495 (FAB)___ __ 20

amended complaint and determined that the exhibit contradicted the

contents of the complaint. See id. at pp. 6-7. The application

of this exception, however, is only appropriate when the exhibit

has been attached to the complaint. See Brokers’ Choice of Ame.,

Inc. v. NBC Universal, Inc., 961 F.3d 1081, 1105 (10th Cir. 2017)

(“When a complaint includes an attached exhibit[,] the exhibit’s

legal effect is to be determined by its terms rather than by the

allegations of the pleader.”) Here, McLemore did not attach any

exhibit to his complaint; the exhibit was provided by the Sheriff

in his motion to dismiss. Accordingly, it cannot be considered

under this exception.

The Court could consider the exhibit if it was central

to the complaint and if the parties do not dispute the document’s

authenticity. While the Jail Rules are central to the complaint,

there is a dispute as to which rules were in effect when McLemore

was arrested. The magistrate judge stated that the Sheriff’s

Office “provided clear evidence” that the Jail Rules that McLemore

relies on cannot be the ones that were in effect when he was

booked. (Docket No. 50 at p. 7.) The Court disagrees. Neither

the Jail Rules provided by the Sheriff’s Office, nor the ones

provided by McLemore contain an effective date. Accordingly, the

parties dispute the authenticity of the document and as a result,

the Jail Rules cannot be considered.

Civil No. 24-495 (FAB)___ __ 21

At this stage, the Court accepts all of McLemore’s

factual allegations as true and draws all inferences in his favor.

McLemore alleges that the Jail Rules allowed staff to take

disciplinary action if McLemore did not obey staff and disrespected

staff. See Docket No. 22 at p. 6. McLemore argues that a lack of

training and definition on “disciplinary action” allowed

Williamson and Barone to leave him naked in an observation cell

for eight hours as punishment for his disobedience and disrespect

of staff. Id. Considering the allegations in the four corners of

the complaint, McLemore raises enough facts to plausibly state a

claim.

The problem that the Court now faces, however, is that

McLemore has been adamant that his claim against the Sheriff arises

from a violation of his Fourteenth Amendment rights, not the Fourth

Amendment. See Docket No. 60 at p. 1 (“[H]is claim in this case

are brought under the Fourteenth, not the Eighth, Amendment.”);

see generally Docket No 22 at pp. 10-11. He only asserts a Fourth

Amendment claim in the complaint solely referring to the actions

taken by Williamson and Barone. The complaint does not contain a

Fourth Amendment claim against the Sheriff. See Docket No. 22 at

p. 8. “[T]he burden rests on the plaintiff[ ] to provide fair

notice of the grounds for the claims made against each of the

Civil No. 24-495 (FAB)___ __ 22

defendants.”). Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th

Cir. 2008).

In Geddes v. Weber Cnty., the Tenth Circuit Court of

Appeals determined that the district court properly dismissed the

case because the plaintiff had failed to provide fair notice to

the defendants that his claims were based on the Fourth Amendment

and not the Fourteenth Amendment. Geddes, 2022 WL 3371010 at *9.

The plaintiff in Geddes had been warned by the defendants that he

could only pursue his claim pursuant to the Fourth Amendment and

yet plaintiff continued to “persistently maintain[ ]” that his

claim was pursuant to the Fourteenth Amendment. Id. at *10.

Similarly here, McLemore insists, even in his objection to the

R&R, that his claims against the Sheriff are brought pursuant to

the Fourteenth Amendment. See Docket No. 60 at p. 1. The Court

cannot say that the Sheriff had notice of a Fourth Amendment claim

because the Sheriff did not make an argument as to the Fourth

Amendment like Williamson and Barone did. Because the Fourteenth

Amendment claim against the Sheriff is not the proper claim, the

Court will grant the Sheriff’s motion to dismiss without prejudice.

The Court will, however, allow McLemore thirty days to amend his

complaint to allege the correct constitutional claim. See Fed. R.

Civ. P. 15(a)(2) (courts “should freely give leave [to amend] when

justice so requires.”).

Civil No. 24-495 (FAB)___ __ 23

IV. Conclusion

For the reasons set forth above, the Court REJECTS the

reasoning in Dalton Barone’s and Michael Williamson’s R&Rs.

Defendant Barone’s and defendant Williamson’s motions to dismiss

are DENIED IN PART. (Docket No. 26; Docket No. 27.) McLemore’s

pure substantive due process claim against Barone and Williamson

pursuant to the Fourteenth Amendment is dismissed WITH PREJUDICE.

His Fourth Amendment claim against Barone and Williamson, as

incorporated through the Fourteenth Amendment, survives.

The Court also REJECTS the reasoning in the Sheriff of

Pittsburg County’s R&R. Defendant Sheriff’s motion to dismiss,

however, is GRANTED. (Docket No. 28.) McLemore’s pure substantive

due process claim pursuant to the Fourteenth Amendment against the

Sheriff is dismissed WITH PREJUDICE. McLemore is allowed thirty

days to amend his complaint to allege the correct constitutional

claim against the Sheriff.

Partial Judgment shall be entered accordingly.

IT IS SO ORDERED.

San Juan, Puerto Rico, June 11, 2026.

s/ Francisco A. Besosa

FRANCISCO A. BESOSA

SENIOR UNITED STATES DISTRICT JUDGE