Grant v. Callahan et al

Filing 76

ORDER adopting Report and Recommendations re 75 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 1/16/2009. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA DELBERT GEORGE GRANT, Plaintiff, vs. DENNIS CALLAHAN, et al., Defendants. ) ) ) ) ) ) ) ) ORDER Before the Court is the Report and Recommendation [Doc. No. 75] of United States Magistrate Judge Robert E. Bacharach, to whom this matter was referred for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). Plaintiff, an inmate appearing pro se, brought this action as a civil rights claim pursuant to 42 U. S. C. § 1983, asserting claims against numerous defendants1. All claims except those directed at Defendant Daniels were dismissed in this Court's November 24, 2008 Order [Doc. No. 74]. The current Report and Recommendation addresses Plaintiff's only remaining claims, and recommends the dismissal of those claims because the statute of limitations expired prior to the filing of this action. In the Report and Recommendation, the Magistrate Judge advised Plaintiff of his right to object to the same and scheduled a December 17, 2008 deadline for filing objections. The Magistrate Judge also advised Plaintiff that a failure to timely object would constitute a waiver of his right to appellate review of the factual and legal issues contained in the Report and
As Judge Bacharach correctly notes, Plaintiff's claims are not properly characterized as §1983 claims because, at the relevant time, all named defendants were not state actors, but were federal officers. Because §1983 applies only to state actors, it is inapplicable here. Instead, the asserted claims are properly considered as based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Magistrate Judge correctly recharacterized the claims as arising solely under Bivens. See Kinnell v. Graves, 265 F. 3d 1125, 1127 n. 1 (10th Cir. 2001) (recharacterizing a pro se litigant's §1983 claim against federal officers as a Bivens claim).
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NO. CIV-07-965-D

Recommendation. Although Plaintiff's deadline for objecting to the Report and Recommendation has expired, he has not filed an objection, nor has he sought an extension of time in which to do so. Accordingly, the Report and Recommendation [Doc. No. 75] is adopted as though fully set forth herein. Plaintiff's claims against Defendant Daniels are DISMISSED. Inasmuch as all claims against the other named defendants were previously dismissed2, this case is closed. IT IS SO ORDERED this 16th day of January, 2009.

All claims were dismissed with prejudice except Plaintiff's claim against Dr. McNerny. In the November 14, 2008 Order [Doc. No. 74], those claims were dismissed without prejudice because Plaintiff failed to timely perfect service on Dr. McNerny, despite repeated extensions of the deadline for perfecting service. All other claims are dismissed with prejudice because the statute of limitations has expired on those claims.

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