Oringderff Jr v. Cooper et al

Filing 20

ORDER ADOPTING 17 Report and Recommendation, GRANTING 10 Motion for Summary Judgment filed by William Cooper, DISMISSING case without prejudice for failure to exhaust administrative remedies, DISMISSING John Doe dfts without prejudice for lack of service. Signed by Honorable Stephen P. Friot on 4/27/10. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA JAMES VICTOR ORINGDERFF, JR., ) ) Plaintiff, ) ) vs. ) ) (1) WILLIAM COOPER and (2) - (10) ) JOHN DOES, ) ) Defendants. )

Case No. CIV-09-0677-F

ORDER Plaintiff James Victor Oringderff, Jr., a state prisoner appearing with counsel, brings this action pursuant to 42 U.S.C. § 1983 alleging a violation of his federal constitutional rights. Defendant has filed a motion for summary judgment (doc. no. 10), arguing that this action should be dismissed for failure to exhaust administrative remedies. Plaintiff has objected to certain recommendations in the March 25, 2010 Report and Recommendation of Magistrate Judge Valerie K. Couch. Specifically, plaintiff objects to the Magistrate Judge's recommendation that this action be dismissed without prejudice for failure to exhaust administrative remedies. Plaintiff argues that Magistrate Judge Couch is "too dismissive" of the Tenth Circuit's opinion in Whitington v. Ortiz, 472 F.3d 804 (10th Cir. 2007). Plaintiff raises no objection to the other recommendation contained in the Report, which is that the John Doe defendants be dismissed without prejudice for lack of service of process under Rule 4(m), Fed. R. Civ. P., unless plaintiff, through his counsel of record, shows cause for an extension of time within which to obtain

service. No request for an extension has been made by plaintiff, and no cause has been shown for any extension. As required by 28 U.S.C. §636(b)(1), the court has reviewed all objected to matters de novo. Having completed that review, the court finds that no purpose would be served by any additional analysis here, and that the Magistrate Judge's recommendation that this action be dismissed for failure to exhaust administrative remedies should be adopted. The court has also reviewed the portions of the Report to which no objection has been made. Upon review, the court finds that no purpose would be served by any additional analysis of the service issue with respect to the John Doe defendants. The Magistrate Judge's recommendation that the John Doe defendants be dismissed for failure to serve, under Rule 4(m), should be adopted. Accordingly, the court ACCEPTS, ADOPTS and AFFIRMS Magistrate Judge Couch's Report and Recommendation in its entirety. Defendant's motion for summary judgment is GRANTED. This action is DISMISSED without prejudice, for failure to exhaust administrative remedies. Additionally, the John Doe defendants are dismissed without prejudice under Rule 4(m), Fed. R. Civ. P., for lack of service. Dated this 27th day of April, 2010.

09-0677p002.wpd

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