Colbert v. Oklahoma Department of Corrections Medical Services et al

Filing 8

OPINION AND ORDER by District Judge James H. Payne : Plaintiffs motion to voluntarily dismiss this action 7 is GRANTED, and this action is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 41(a). (case terminated) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DANIEL COLBERT, JR.,
Plaintiff,
v.
OKLAHOMA DEPARTMENT
OF CORRECTIONS MEDICAL
SERVICE, BUDDY HONAKER,
DAVID SUTMILLER,
and DR. MARLER,
Defendants.

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No. CIV 16-408-JHP-SPS

OPINION AND ORDER
On September 23, 2016, Plaintiff filed in the Northern District of Oklahoma a
“Petition Seeking Injunctive Relief,” which was construed as a civil rights action pursuant
to 42 U.S.C. § 1983. (Dkt. 1). Plaintiff alleged he has squamous cell carcinoma, resulting
in his inability to eat, swallow, or digest food. Id. at 1. Therefore, a percutaneous
endoscopic gastronomy (PEG) tube was inserted into Plaintiff at OU Medical Center. Id.
Plaintiff subsequently was transferred to Oklahoma State Penitentiary, where
Defendant Dr. Marler, the facility physician, ordered a new PEG tube for Plaintiff. Id. at 2.
Dr. Marler intended to perform the surgery to insert the tube. Id. Plaintiff, however,
objected to Dr. Marler’s performing the procedure, because Dr. Marler may not be qualified
to perform the surgery. Id. In addition, Dr. Marler allegedly had repeatedly asked Plaintiff
to sign a Do Not Resuscitate form, so Plaintiff can die. Id. Fearing he could die from
“medical malfeasance or neglect,” Plaintiff asked the Court to intervene and have him
removed from Dr. Marler’s care. Id.
Because venue was improper in the Northern District, the case was transferred to this
Court on September 26, 2016. (Dkt. 2). On that date, this Court directed Plaintiff to file a
proper civil rights complaint and to pay the filing fee or file a proper motion for leave to

proceed in forma pauperis (Dkts. 5, 6).
On October 27, 2016, Plaintiff filed a letter which was construed as a motion to
voluntarily dismiss this action. (Dkt. 7). The motion alleges that two days after the
complaint was filed, Dr. Marler advised Plaintiff that if Plaintiff would allow the surgery, he
would be moved from an isolation cell to the infirmary. Id. Dr. Marler further advised
Plaintiff that if he did not consent to the surgery, Plaintiff would be given a Do Not
Resuscitate form and left in the isolation cell to die. Id. Because Plaintiff gave permission
for the surgery, he alleged he no longer had grounds for relief, and he asked to dismiss this
action. Id.
ACCORDINGLY, Plaintiff’s motion to voluntarily dismiss this action (Dkt. 7) is
GRANTED, and this action is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R.
Civ. P. 41(a).
IT IS SO ORDERED this 29th day of November, 2016.

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