Clinger

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

KARL ARTHUR CLINGER,

Plaintiff,

v. Civil No. 25-281 (FAB)

STEPHEN LEE, Deputy at Okmulgee

County Sheriff’s Office; JASON

DAWSON, Deputy at Okmulgee

County Sheriff’s Office; ROBERT

HEATH, Sergeant at Okmulgee

County Sheriff’s Office; SMOKEY

PATCHIN, Deputy at Okmulgee

County Sheriff’s Office; EDDIE

RICE, Sheriff of Okmulgee

County; CAROL ISKI, District

Attorney.

Defendants.

OPINION AND ORDER

BESOSA, Senior District Judge.1

Before the Court is a Report and Recommendation (“R&R”) issued

by U.S. Magistrate Judge Gerald L. Jackson (Docket No. 48.)

regarding two motions to dismiss filed by defendants, one filed by

Stephen Lee (“Lee”), Jason Dawson (“Dawson”), Robert Heath

(“Heath”), Smokey Patchin (“Patchin”), and Eddie Rice (“Rice”)

(Docket No. 15), and another motion to dismiss filed by defendant

Carol Iski (“Iski”) (Docket No. 24). Also before the Court is

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

sitting by designation.

Civil No. 25-281 (FAB)___ __ 2

plaintiff Karl Arthur Clinger (“Clinger”)’s two motions to

disqualify defendants’ counsel. (Docket No. 29; Docket No. 30.)

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 ADOPTS IN PART and

REJECTS IN PART the R&R. Defendants Lee’s, Dawson’s, Heath’s,

Patchin’s and Rice’s motion to dismiss (Docket No. 15) is GRANTED.

Defendant Iski’s motion to dismiss (Docket No. 24) is also GRANTED.

Plaintiff Clinger’s two motions to disqualify counsel are both

DENIED.

I. Background

Plaintiff Karl Arthur Clinger, proceeding pro se, brought

this suit against (1) Stephen Lee, a Deputy at the Okmulgee County

Sheriff’s Office; (2) Jason Dawson, a Deputy at the Okmulgee County

Sheriff’s Office; (3) Robert Heath, a Sergeant at the Okmulgee

County Sheriff’s Office; (4) Smokey Patchin, a Deputy at the

Okmulgee County Sheriff’s Office; (5) Eddie Rice, the Sheriff of

Okmulgee County; and (6) Carol Iski, the District Attorney for

Okmulgee County, for violation of his constitutional rights under

the First, Fourth and Eighth Amendments to the United States

Constitution. (Docket No. 2.)

Civil No. 25-281 (FAB)___ __ 3

Clinger’s complaint arises from a traffic stop and subsequent

arrest that took place on August 10, 2024.2 (Docket No. 2; Docket

No. 15 at p. 8.) Clinger alleges that Deputy Lee pulled him over

for an invalid reason, e.g., a broken tag light while it was still

daylight. (Docket No. 2 at p. 2.) During the traffic stop,

Clinger requested to speak to a supervisor, which Deputy Lee did

not allow. Id. Deputy Lee also allegedly refused to provide

Clinger with the reason for the traffic stop until he provided his

identification. Id. What happened next is not clear, but Deputy

Lee then allegedly handcuffed Clinger and disabled the recording

that Clinger was making on his cellphone. Id. Deputy Lee then

allegedly reached into Clinger’s pocket, removed his wallet, and

searched it without Clinger’s consent or probable cause. Id.

Clinger also alleges that Deputy Lee illegally seized his vehicle

from private property and subsequently searched it. Id. Finally,

Clinger alleges that Deputy Lee handcuffed him in an excessively

tight manner and left the handcuffs on for over an hour, which

caused Clinger to suffer pain and discoloration in his hands. Id.

Clinger alleges that Deputy Dawson, who was present during

the traffic stop, failed to intervene with Deputy Lee and prevent

2 Clinger’s complaint does not state where or when these events occurred,

but the motion to dismiss filed by the Sheriff Office defendants informs

the Court of the date the event occurred. (Docket No. 48 at p. 5.)

Civil No. 25-281 (FAB)___ __ 4

his unlawful search and seizure. According to Clinger, Deputy

Dawson supported Deputy Lee when Clinger asked if he was okay with

Deputy Lee’s actions. Id. at p. 3. Deputy Dawson also allegedly

recorded the incident on a personal cellphone, and failed to

preserve the footage. Id. Sergeant Heath allegedly allowed

Clinger’s vehicle to be unlawfully towed because of “a fabricated

policy of towing ‘pursuant to arrest.’” Id. Sergeant Heath also

did not intervene to prevent the unlawful actions of his

subordinates. Id. But Clinger does not allege Sergeant Heath was

present during the stop.

Deputy Patchin allegedly refused to provide Clinger with

public records of the incident, and failed to preserve evidence

critical to Clinger’s case. Id. Clinger also alleges that Sheriff

Rice failed to ensure that his deputies complied with

constitutional protections, and “did not provide oversight to

prevent systemic violations of constitutional rights.” Id.

Finally, Clinger alleges that District Attorney Iski made false

and prejudicial statements in open court and violated Clinger’s

speedy trial rights by not assigning an attorney to his case, and

having charges linger for over six months. Id. District Attorney

Iski also allegedly made false statements that caused Clinger

emotional harm. Id. at p. 4.

Civil No. 25-281 (FAB)___ __ 5

On August 12, 2025, Clinger filed his complaint alleging

violations of his First, Fourth, Eighth Amendment rights pursuant

to the U.S. Constitution. Id. On October 3, 2025, defendants

Lee, Dawson, Heath, Patchin and Rice moved to dismiss the complaint

for failure to state a claim, arguing that the complaint did not

allege any constitutional violation and that, even if there was a

constitutional violation, they were all entitled to qualified

immunity. (Docket No. 15.) Clinger opposed (Docket No. 16; Docket

No. 31), and defendants Lee, Dawson, Heath, Patchin and Rice

replied. (Docket No. 26.)

On October 21, 2025, defendant Iski moved to dismiss the

complaint against her for failure to state a claim, arguing that

she was entitled to prosecutorial immunity. (Docket No. 24.) On

November 3, 2025, Clinger also moved to disqualify defendants’

counsel. (Docket No. 29; Docket No. 30.) Defendants opposed

(Docket No. 33; Docket No. 34), and Clinger replied. (Docket No.

35; Docket No. 36.)

All motions were referred to Magistrate Judge Gerald L.

Jackson. (Docket No. 46.) On March 13, 2026, Magistrate Judge

Jackson issued an R&R, addressing every motion. (Docket No. 48.)

The R&R recommended that defendants Lee, Dawson, Heath, Patchin,

and Rice’s motion to dismiss be granted in part and denied in part,

and that defendant Iski’s motion to dismiss be granted. Id. He

Civil No. 25-281 (FAB)___ __ 6

also recommended that Clinger’s motion to disqualify counsel be

denied.

Magistrate Judge Jackson recommended that the Court solely

dismiss Clinger’s claims against Deputy Lee as to the traffic stop,

the denial of his request for a supervisor, and Deputy Lee’s

refusal to provide a reason for the traffic stop until Clinger

provided his identification. (Docket No. 48 at p. 9.) Magistrate

Judge Jackson, however, recommended that Clinger’s claims against

Deputy Lee concerning the seizure of his cellphone, the search of

his person, the seizing his vehicle, and excessive force when being

handcuffed should survive. Id. Magistrate Judge Jackson also

recommended that Clinger’s claims against Deputy Dawson should

survive because Clinger had pled enough facts “as to the question

of whether [Deputy] Dawson had time to intervene.” Id. at p. 10.

The magistrate judge also recommended that Clinger’s claims

against defendants Heath, Patchin and Rice should be dismissed

because Clinger failed to plausibly plead sufficient facts. Id.

at p. 11. He also recommended that the claims against defendant

Iski should be dismissed because she was entitled to prosecutorial

immunity. Id. at p. 14. Finally, Magistrate Judge Jackson found

that amending the complaint would be futile. Id. at p. 16.

Magistrate Judge Jackson also recommended denying both of

Clinger’s motions to disqualify defendants’ counsel. Id. at

Civil No. 25-281 (FAB)___ __ 7

pp. 17-19. He stated that there was no conflict of interest in

defendants being represented by the same attorneys and that “state

law requires the Attorney General to represent employees in

appropriate circumstances.” Id. at p. 19. Magistrate Judge

Jackson found that the Attorney General’s representation of all

defendants did not threaten the integrity of the judicial system.

Id.

Defendants Deputy Lee and Deputy Dawson objected to the

magistrate judge’s recommendation not to dismiss all the claims

against them. (Docket No. 50.) Clinger objected to the dismissal

of his claims, and defendants opposed Clinger’s objections.

(Docket No. 54; Docket No. 55.) Clinger first asserts that the

magistrate judge erred in resolving a factual dispute about whether

there was reasonable suspicion for the traffic stop, and in

determining that there was no constitutional violation pursuant to

the Fourth Amendment. (Docket No. 54 at pp. 1-2.) Second, Clinger

argues that the magistrate judge erred in finding that there was

probable cause to arrest him. Id. at 2. Third, Clinger asserts

that the magistrate judge erred in recommending that leave to amend

complaint be denied because he could fix any deficiency found by

the magistrate judge. Id. at p. 3.

Civil No. 25-281 (FAB)___ __ 8

II. Legal Standard

A. Report and Recommendation

A district court may refer a pending motion to a

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

§ 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). Failure to object precludes further review by the

district court. Morales-Fernández v. I.N.S., 418 F.3d 1116, 1119

Civil No. 25-281 (FAB)___ __ 9

(10th Cir. 2005) (citing Moore v. United States, 950 F.2d 656, 659

(10th Cir. 1991) (“This court has adopted a firm waiver rule under

which a party who fails to make a timely objection to the

magistrate judge’s findings and recommendations waives appellate

review of both factual and legal guestions.”)

B. Motion to Dismiss

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. To

survive a Rule 12(b)(6) motion, a complaint must contain enough

factual matter “to state a claim to relief 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).

A pro se litigant’s pleadings should be held “to less

stringent standards than formal pleadings drafted by lawyers.”

Tatten v. City & Cty. of Denver, 730 F. App’x. 620, 624 (10th Cir.

2018) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). But,

Civil No. 25-281 (FAB)___ __ 10

“a pro se litigant’s ‘conclusory allegations without supporting

factual averments are insufficient to state a claim on which relief

can be based.’” West v. United States, No. 25-3082, 2025 U.S.

App. LEXIS 24165, at *5 (10th Cir. Sept. 18, 2025) (quoting Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). It is not “the

proper function of the district court to assume the role of

advocate for the pro se litigant.” Hall, 935 F.2d at 1110.

III. Discussion

The Court will first address Clinger’s objections to the R&R.

Then the Court will analyze Deputy Lee’s and Deputy Dawson’s

objections to the R&R. Finally, the Court will analyze whether

amending the complaint would be futile.

A. Clinger’s Objections

Clinger asserts that the magistrate judge committed

three errors: (1) finding there was reasonable suspicion for the

traffic stop; (2) prematurely assuming there was probable cause

for the arrest; and (3) finding that amending the complaint would

be futile.3 (Docket No. 54.)

i. Traffic Stop

The magistrate judge determined that “[a] portion

of [Clinger’s] claims fail to establish constitutional

3 As mentioned above, this objection will be discussed separately after

addressing all objections pertaining to the merits.

Civil No. 25-281 (FAB)___ __ 11

violations,” and recommended dismissing the claim because a broken

tag light justifies a traffic stop. (Docket No. 48 at p. 6.)

Clinger argues that there could not be a reasonable suspicion to

justify the traffic stop because, under Oklahoma law, rear tag

illumination is only required when the sun sets and headlamps are

required. (Docket No. 54 at p. 1.) He asserts that “[i]f the

equipment statute was not operative at that time, the stop lacked

lawful basis.” Id. at p. 2. Defendants do not oppose Clinger’s

reading of the statutes. They argue that the broken tag light was

but one of the reasons for the traffic stop as Clinger alleges in

his complaint and proposed amended complaint. (Docket No. 55 at

pp. 1-2.) And that “any violation of the traffic or equipment

regulations gives reasonable suspicion to justify a traffic stop.”

Id. The Court agrees.

Pursuant to the Oklahoma statute, a lamp

illuminating the rear license plate – a tag light - shall be

lighted whenever “clearance lamps and headlamps . . . are lighted.”

Okla. Tit. 47 § 12-204.1. Clinger argues that the light

illuminating the license plate did not need to be on at 8:29 p.m.

because the sun had not set and headlamps were therefore not

required. (Docket No. 54-1 at p. 3.) In his proposed amended

complaint, Clinger claims the official sunset time was at 8:46

p.m.; the Court, however, takes judicial notice that the official

Civil No. 25-281 (FAB)___ __ 12

sunset time in Okmulgee County was 8:18 p.m. on the date of the

traffic stop. See Time and Date,

ttps://www.timeanddate.com/sun/@7174010?month=8&year=2024 (last

visited July 22, 2026). Therefore, contrary to Clinger’s

allegations, the sun had set and his vehicle’s tag light needed to

be on and working.

Additionally, Clinger was not stopped just because

the tag light was not illuminated, but because the officers had

reasonable suspicion that it was broken. Pursuant to section 12-

101(A)(1)(c), “[i]t shall be a misdemeanor . . . for any person to

drive . . . any vehicle . . . which is not at all times equipped

with such lamps and other equipment in proper condition and

adjustment as required in this chapter.” Okla. Tit. 47 § 12-101.

Because Clinger’s vehicle’s tag light was not illuminated despite

the low light, the officers would have had reasonable suspicion

that it was not in its proper working condition. Because

“[r]easonable suspicion that a driver violated ‘any traffic or

equipment regulations of the jurisdiction’ can justify a traffic

stop[,]” the Court agrees with Magistrate Judge Jackson that

Clinger’s traffic stop was justified.4 Accordingly, on the face

4 Clinger’s amended complaint also states that Deputy Lee stopped his

vehicle because of windshield defects. (Docket No. 54-1 at p. 4.) A

windshield defect would also justify stopping Clinger. See Okla.

tit. 47, § 12-404.

Civil No. 25-281 (FAB)___ __ 13

of the complaint and the proposed amended complaint, the Court

finds that Clinger fails to state a cause of action against Deputy

Lee for the traffic stop.

ii. Probable Cause

Clinger’s next argument is that the magistrate

judge erred in finding that there was no probable cause for his

arrest. (Docket No. 54 at p. 2.) Magistrate Judge Jackson,

however, did not determine that there was no probable cause. In

fact, Magistrate Judge Jackson stated the opposite: “At this stage

of the litigation, the Court cannot conclude as a matter of law

that the allegations of Plaintiff’s complaint show that Lee had

probable cause to arrest Plaintiff, which calls into question any

search of his person and seizure of his vehicle.” (Docket No. 48

at p. 8.) Because the magistrate judge could not determine if

there was probable cause, he recommended that the claims arising

out of the arrest, search and seizure of Clinger’s cellphone and

vehicle should survive. Id. at p. 9. The Court is perplexed by

Clinger’s objection and finds that it has no merit.

B. Defendant Lee’s Objections

Deputy Lee objects to the magistrate judge’s finding

that Clinger “plausibly pled constitutional violations for ‘(1)

the First Amendment with regard to Plaintiff’s cellphone; (2) the

Fourth Amendment by searching Plaintiff incident to the arrest

Civil No. 25-281 (FAB)___ __ 14

because he pleads that the search was conducted without probable

cause; and (3) seizing his vehicle from private property; and

(4) for the Eighth Amendment with regard to excessive force in

using handcuffs.’” (Docket No. 50 at p. 1 (citing Docket No. 48

at pp. 7-8.)) The Court addresses each plea in turn.

i. First Amendment Claim

Deputy Lee argues that the magistrate judge

mistakenly found that the claim pertaining to Clinger’s cellphone

survived because the Court could not conclude that his cellphone

was lawfully seized pursuant to a finding of probable clause.

(Docket No. 50 at p. 2.) According to Deputy Lee, Clinger’s claim

arising from his cellphone is not a Fourth Amendment unlawful

seizure claim, but a First Amendment claim. Id. Deputy Lee is

correct. Clinger’s Fourth Amendment claims pertain solely to the

traffic stop, his arrest, and the seizing of his vehicle. (Docket

No. 2 at p. 3.) Clinger’s cellphone claim is different – he

alleges that Deputy Lee disabled the recording in his cellphone

despite his First Amendment right to record. The magistrate

judge’s analysis of this claim under the Fourth Amendment was

therefore misplaced. Accordingly, the Court turns to analyze

Civil No. 25-281 (FAB)___ __ 15

whether Clinger has sufficiently pled a First Amendment claim

against Deputy Lee.

To state a First Amendment claim, “a plaintiff must

allege facts showing ‘(1) that [he] was engaged in constitutionally

protected activity; (2) that the defendant’s actions caused the

plaintiff to suffer an injury that would chill a person of ordinary

firmness from continuing to engage in that activity; and (3) that

the defendant’s adverse action was substantially motivated as a

response to the plaintiff’s exercise of constitutionally protected

conduct.’” Irizarry v. Yehia, 38 F.4th 1282, 1288 (10th Cir.

2022). Clinger’s allegations satisfy the first of these elements

– recording police officers performing their duties is a

constitutionally protected activity.5 Id. at 1292.

Clinger only states that his First Amendment rights

were violated when Deputy Lee “disabled [Clinger’s] phone

recording after handcuffing him.” (Docket No. 2 at p. 3 (emphasis

added.)) There is no indication that Clinger’s filming was the

reason for his arrest. He was, as has already been discussed,

lawfully pulled over. Deputy Lee claims that he proceeded to

arrest Clinger because Clinger failed to give him his driver’s

5 Deputy Lee also concedes that “the Tenth Circuit has recognized a

‘First Amendment right to film police performing their duties in

public.’” (Docket No. 50 at p. 2 citing Irrizary v. Yehia, 38 F.4th

1282, 1292 (10th Cir. 2022).)

Civil No. 25-281 (FAB)___ __ 16

license, a fact which Clinger does not dispute. Accordingly,

Clinger has failed to state a claim pursuant to the First

Amendment.

ii. Fourth Amendment Claims

Deputy Lee next objects to the magistrate judge’s

finding that he could not conclude that there was probable cause

to arrest Clinger. (Docket No. 50 at p. 3.) The magistrate judge

stated that Clinger had pled sufficient facts to show that Deputy

Lee “reached into [Clinger’s] pocket, removed his wallet and

searched it without consent or probable cause.” (Docket No. 48 at

p. 8.) The Court disagrees with the magistrate judge.

Deputy Lee argues that the magistrate judge erred

in stating that a showing of actual probable cause is required for

section 1983 claims. He asserts only arguable probable cause is

required. (Docket No. 50 at p. 3.) Whether there was probable

cause or arguable probable cannot be assessed because there are no

facts on the face of the complaint to be able to make that

determination. (Docket No. 2.) Clinger’s original complaint

simply states, without elaboration, that he was searched without

probable cause. Id. This is a legal conclusion and need not be

credited as true. McAuliffe v. Vail Corp., 69 F.4th 1130, 1143

(10th Cir. 2023). Clinger’s proposed amended complaint fares no

better. There, Clinger states that he did not “physically resist,”

Civil No. 25-281 (FAB)___ __ 17

and that he was handcuffed prior to articulation of any equipment

violation. (Docket No. 54-1 at pp. 3-4.) In his objections,

Clinger claimed that “he did not refuse identification.” (Docket

No. 54 at p. 2.) This seems to be in response to Deputy Lee’s

argument that Clinger was arrested because he failed to provide

his driver’s license. See Docket No. 15 at p. 8. Again, the

amended complaint does not include well-pleaded factual

allegations that would suggest that Deputy Lee lacked probable

cause.

The same is true for Clinger’s claim that Deputy

Lee “illegally seized [his] vehicle from private property and used

the keys to justify a search.” (Docket No. 2 at p. 2.) It is not

clear if Clinger is alleging that Deputy Lee purported to have

Clinger’s consent to search because he had the vehicle’s keys. It

is also not clear if the private property is Clinger’s own or if

he had authorization to keep the vehicle in that private property.

Because Clinger fails to provide well-pleaded factual allegations,

the Court cannot determine whether he has raised a claim for which

relief could be granted.

iii. Eighth Amendment Claim

Finally, Deputy Lee objects to the magistrate

judge’s finding that Clinger’s excessive force claim pursuant to

the Eighth Amendment should survive. A claim for excessive force

Civil No. 25-281 (FAB)___ __ 18

during arrest, however, is brought under the Fourth Amendment, not

the Eighth Amendment. The Fourth Amendment prohibits

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

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

investigatory stop of a free citizen.” Geddes v. Weber Cnty.,

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

(internal quotations omitted). The Eighth Amendment applies only

after a defendant has been convicted, and “protect[s] against

unjustifiable conditions of confinement, such as ‘the unnecessary

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

1155, 1162 (10th Cir. 2019) (quoting Hudson v. McMillian, 503

U.S. 1, 5 (1992)). Because Clinger had not yet been convicted

when he was handcuffed, his claim of excessive force falls under

the Fourth Amendment not the Eighth Amendment. Accordingly,

Clinger’s claim pursuant to the Eighth Amendment is dismissed.

The Court will now analyze Clinger’s claim pursuant

to the Fourth Amendment incorrectly brought pursuant to the Eighth

Amendment. “In some circumstances, unduly tight handcuffing can

constitute excessive force where a plaintiff alleges some actual

injury from the handcuffing and alleges that an officer ignored a

plaintiff’s timely complaints (or was otherwise made aware) that

the handcuffs were too tight.” Cortez v. McCauley, 478 F.3d 1108,

1129 (10th Cir. 2007). Neither his complaint nor his proposed

Civil No. 25-281 (FAB)___ __ 19

amended complaint alleges that Clinger requested that the officer

loosen the handcuffs or that his request was denied. Clinger does

allege that due to the excessively tight handcuffs, he suffered

physical pain and discoloration in his hands. (Docket No. 2 at

p. 2.) De minimis physical harm from handcuffing is insufficient.

See id. at 1129 n.25. It is also unclear whether the pain and

discoloration was brief or had lasting effects. Regardless, on the

face of the complaint there is not enough “to support an excessive

force claim [even] if the use of handcuffs is otherwise justified.”

Id.

Accordingly, Clinger has failed to state a claim

under the Fourth Amendment against Deputy Lee. All claims against

Deputy Lee are dismissed.

C. Defendant Dawson’s Objection

Deputy Dawson objects to the R&R’s finding that Clinger

sufficiently pled a claim against him for failure to intervene.

(Docket No. 50 at p. 6.) Deputy Dawson argues that Clinger “failed

to allege any facts which state a plausible claim for violation of

[Clinger’s] constitutional rights by Defendant Lee, which required

[Deputy Dawson] to intervene.” The Court agrees. As was discussed

above, Clinger failed to include well-pleaded facts that would

Civil No. 25-281 (FAB)___ __ 20

give rise to a constitutional violation. Therefore, all claims

against Deputy Dawson are dismissed.

D. Futility of Amending Complaint

Finally, Clinger objects to the magistrate judge’s

finding that any attempt to amend the complaint would be futile,

and requests leave to amend the complaint. (Docket No. 48 at

p. 15.) On November 3, 2025, Clinger requested leave to amend but

failed to attach the proposed amended complaint. (Docket No. 27.)

Because Clinger failed to attach the proposed amended complaint,

the Court denied leave to amend without prejudice. (Docket

No. 32.) Clinger did not file a proposed amended complaint until

submitting his objections to the R&R. (Docket No. 54-1.)

A plaintiff may amend his or her complaint once as of

right; he or she must do so within 21 days of serving the original

complaint or 21 days after service of a responsive pleading or

motion under Rule 12(b), (e), or (f), whichever is earlier. Fed.

R. Civ. P. 15(a)(1). Clinger’s request to amend the complaint in

his objections to the R&R was submitted in April 2026, over six

months after the first motion to dismiss was filed. See Docket

No. 54. As a result, Clinger had to obtain leave of the court

before filing his amended complaint. See United States ex rel.

Carter v. Halliburton Co., 144 F. Supp. 3d 869, 877-79 (E.D. Va.

2015) (finding that “the time period for amending the complaint as

Civil No. 25-281 (FAB)___ __ 21

a matter of course under [Rule] 15(a)(1) beg[ins] when Defendants

filed their first motion to dismiss[,]” and subsequent motions to

dismiss do not toll the 21-day period). Although “[c]ourts should

give leave to amend freely, especially when the plaintiff is

proceeding pro se[,]” leave to amend may be refused “upon a showing

of futility of amendment.” Panicker v. State Dep’t of Agric., 498

F. App’x. 755, 757 (10th Cir. 2012) (citing Fed. R. Civ. P. 15(a);

Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993))

(internal alterations omitted). “A proposed amendment is futile

if the complaint, as amended, would be subject to dismissal.” Id.

(quoting Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Inv.’s

Serv., Inc., 175 F.3d 848, 859 (10th Cir. 1999)).

The Court agrees with the magistrate judge’s finding

that Clinger’s proposed amended complaint does not cure the

deficiencies in his original complaint. As was the case with his

original complaint, most of the claims in the proposed amended

complaint are built on legal and conclusory allegations. Although

Clinger’s proposed amended complaint contains a bit more detail

than the original complaint, it would not save his claims from

dismissal. For example, Clinger does not allege that his vehicle’s

tag light was working or that his windshields were in good

conditions when he was stopped. He also does not provide any

factual allegation as to what led to him being placed in handcuffs

Civil No. 25-281 (FAB)___ __ 22

or when the officer ordered him to exit the vehicle. Without

factual averments, Clinger has not stated claims that are

plausible. Accordingly, the claims against Deputy Lee, Deputy

Dawson, and Sheriff Rice are dismissed with prejudice.

E. Claim against District Attorney Iski, Sergeant Heath,

and Deputy Patchin

Clinger has not objected to the magistrate judge’s

recommendation that his claims against District Attorney Iski,

Sergeant Heath and Deputy Patchin should be dismissed. Lowery

Wilkinson Lowery, LLC, 2025 U.S. Dist. LEXIS 268063, at *3. In

fact, Clinger voluntarily dismissed his claim against defendant

Iski. See Docket No. 54 at p. 3. Nevertheless, the Court has

made an independent examination of the entire record and agrees

with the magistrate judge’s reasoning and recommendation. All

claims against District Attorney Iski, Sergeant Heath and Deputy

Patchin are dismissed with prejudice.

F. Clinger’s Motions to Disqualify Counsel

Neither has Clinger objected to the magistrate judge’s

recommendation that his motions should be denied. Failure to

object precludes further review by the district court. Morales-

Fernández, 418 F.3d at 1119.

Civil No. 25-281 (FAB)___ __ 23

Accordingly, defendants’ motions to dismiss are all

GRANTED. (Docket No. 15; Docket No. 24.) Clinger’s motions to

disqualify counsel are DENIED. (Docket No. 29; Docket No. 30.)

IV. Conclusion

For the reasons set forth above, the Court ADOPTS IN PART and

REJECTS IN PART the R&R. Defendants’ motions to dismiss are all

GRANTED. (Docket No. 15; Docket No. 24.) The claims against each

defendant are dismissed WITH PREJUDICE. Clinger’s motions to

disqualify counsel are DENIED.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

San Juan, Puerto Rico, July 30, 2026.

s/ Francisco A. Besosa

FRANCISCO A. BESOSA

SENIOR UNITED STATES DISTRICT JUDGE