Ross v. Wolf et al
ORDER accepting, adopting and affirming 6 Report and Recommendations. The Court dismisses this action. Signed by District Judge Daniel D. Crabtree on 9/12/2017. Mailed to pro se party Kevin W. Ross by regular mail. (ht)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN W. ROSS,
Case No. 17-CV-04027-DDC-GEB
KRISTI WOLF, et al.,
On July 12, 2017, Magistrate Judge Gwynne E. Birzer issued a Report and
Recommendation (Doc. 6), recommending dismissal of this case for several reasons:
(1) plaintiff’s claims against Judge Elizabeth Henry are subject to dismissal under 28 U.S.C. §
1915(e)(2)(B)(iii) because plaintiff seeks relief from a defendant who is immune from suit;
(2) plaintiff’s claims against Kristi Wolf and Christopher L. Wolf are subject to dismissal under
28 U.S.C. § 1915(e)(2)(B)(iii) for failing to state a claim upon which relief may be granted, and
under Fed. R. Civ. P. 12(h)(3) for lack of subject matter jurisdiction; and (3) plaintiff’s claims
against the Sedgwick County District Court are subject to dismissal under 28 U.S.C. §
1915(e)(2)(B)(ii) for failing to state a claim upon which relief may be granted. Doc. 6 at 9–10.
Judge Birzer’s Report and Recommendation noted that plaintiff may serve and file
objections to the Report and Recommendation under 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ.
P. 72(b), within 14 days after service. Doc. 6 at 10. She also advised plaintiff that failing to
make a timely objection to the Report and Recommendation waives any right to appellate review
of the proposed findings of fact, conclusions of law, or recommended disposition. See id.
On July 28, 2017, plaintiff filed a Motion for Extension of Time to File Response to
Report and Recommendations (Doc. 8). Plaintiff’s motion sought an extension of time, but
failed to specify the length of time he was requesting. That same day, the court gave plaintiff the
benefit of this ambiguity and granted him a 30-day extension of time to file a response to the
Report and Recommendations. See Doc. 9. With this extension, plaintiff was required to file a
written objection to the Report and Recommendation on or before August 28, 2017. See id. The
time for plaintiff to file any objections to the Report and Recommendation thus has expired.1
To date, plaintiff has filed no objections to the Report and Recommendation, nor has he
sought another extension of time to file an objection. Because plaintiff has filed no objection to
the Report and Recommendation within the time granted by the initial extension, and he has
sought no additional extension of time to file an objection, the court accepts, adopts, and affirms
the Report and Recommendation in its entirety.
IT IS THEREFORE ORDERED that, after reviewing the record de novo, the Report
and Recommendation issued by United States Magistrate Judge Gwynne E. Birzer on July 12,
2017 (Doc. 6) is ACCEPTED, ADOPTED and AFFIRMED. The court dismisses this action
under 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915(e)(2)(B)(iii), and Fed. R. Civ. P. 12(b)(1).
IT IS SO ORDERED.
Dated this 12th day of September, 2017, at Topeka, Kansas
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
Plaintiff’s deadline for responding is extended by three days under Fed. R. Civ. P. 6(d), because
service was made by mail. Even adding these three additional days to the 30-day extension, the deadline
for responding to Judge Birzer’s Report and Recommendation has expired.
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