Bailey v. Cogburn et al

Filing 46

ORDER granting 42 Motion for Summary Judgment with respect to plaintiff's constitutional claims; adopting Report and Recommendations re 45 Report and Recommendation.. Signed by Honorable Joe Heaton on 3/11/09. (jw, )

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA KENNETH BAILEY, Plaintiff, vs. MICHELLE COGBURN, ET AL., Defendants. ) ) ) ) ) ) ) ) ORDER Plaintiff Kenneth Bailey, a Vermont state prisoner appearing pro se and in forma pauperis, instituted this action pursuant to 42 U.S.C. § 1983 seeking damages and equitable relief for alleged constitutional and statutory violations occurring during his confinement at the North Fork Correctional Facility, a private prison in Oklahoma. Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred to Magistrate Judge Gary M. Purcell for initial proceedings. Defendants moved for summary judgment pursuant to Fed. R. Civ. P. 56, to which plaintiff responded. After considering the motion and response, Judge Purcell recommends that defendants' motion be granted in part and denied in part. Plaintiff, by failing to object to the Report and Recommendation, has waived his right to appellate review. United States v. 2121 East 30th Street, 73 F.3d 1057, 1059-1060 (10th Cir. 2006). After de novo review, the court ADOPTS the Report and Recommendation [Doc. #45]. Plaintiff's claims for violations of Vermont state law or the Vermont Constitution are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for relief, defendant's motion for summary judgment on the basis of plaintiff's failure to exhaust his

NO. CIV-08-1003-HE

administrative remedies is DENIED, and defendants' motion for summary judgment with respect to plaintiff's constitutional claims is GRANTED [Doc. #42]. Further, the court declines to exercise pendent jurisdiction over plaintiff's remaining state tort claims pursuant to 28 U.S.C. § 1367(c)(3). IT IS SO ORDERED. Dated this 11th day of March, 2009.