Ali v. Jones et al

Filing 185

ORDER ADOPTING 183 REPORT AND RECOMMENDATION. Signed by Honorable Robin J. Cauthron on 3/15/13. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MURTAZA ALI,
Plaintiff,
vs.
IRENE LEE; STEVE MOLES; CAROL
DEBOE; GREG PROVINCE; CURTIS
HOOD; LISA FORD; DAVID MILLER;
and, DEAN CALDWELL,
Defendants.

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No. CIV-11-505-C

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff brought the present action pursuant to 42 U.S.C. § 1983, seeking recompense
for alleged violations of his constitutional rights. Consistent with the provisions of 28 U.S.C.
§ 636(b)(1)(B), this action was referred to United States Magistrate Judge Shon T. Erwin.
Judge Erwin entered a Report and Recommendation (“R&R”) on February 19, 2013, to
which Plaintiff timely objected.
The substantive facts and law are accurately set out in the Magistrate Judge’s Report
and Recommendation and there is no purpose to be served in repeating them yet again. As
Judge Erwin noted, two grounds exist which warrant dismissal of Plaintiff’s claims against
Defendants Deboe, Hood, Lee, Moles, and Province; namely, that Plaintiff failed to exhaust
administrative remedies prior to filing the present action and that his claims against these
Defendants in their official capacities are barred by the Eleventh Amendment. On these
grounds, Judge Erwin recommends dismissal. As for Defendants Miller and Cooper, Judge

Erwin recommends dismissal of the claims against them for failure to exhaust administrative
remedies or judgment for lack of personal participation. Finally, Judge Erwin recommends
that Plaintiff’s claims against Defendant Lee be dismissed for failure to timely effect service
on her.
Although Plaintiff failed to respond to Defendants’ Motions before Judge Erwin,* he
now objects to the R&R, complaining of a number of Judge Erwin’s factual determinations.
Of relevance here is Plaintiff’s assertion that he has, in fact, exhausted the available
administrative remedies. In support, Plaintiff directs the Court to a number of pleadings in
the Court file. After review of the referenced documents, the Court finds that none
demonstrate exhaustion. Some of the documents are merely pleadings and therefore
insufficient to rebut a properly supported summary judgment motion. See Applied Genetics
Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (“the nonmoving
party may not rest on its pleadings but must set forth specific facts showing that there is a
genuine issue for trial as to those dispositive matters for which it carries the burden of
proof”) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). To the extent Plaintiff
relies on documents other than the pleadings, those documents do not demonstrate
exhaustion. At best, the documents suggest that Plaintiff began the process as to some of his
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As Judge Erwin noted, Plaintiff, who is represented by counsel, was given multiple
extensions of time to respond to Defendants’ motions. In his Objection, Plaintiff asserts that he
instructed his attorney not to communicate with him because of Plaintiff’s fear that his legal mail
was being read. Plaintiff then requests the Court set a date certain for the responses to be filed.
Plaintiff’s request will be denied. Judge Erwin was clear in setting several specific dates for
Plaintiff’s Responses. That Plaintiff elected to ignore those dates and instruct his attorney to do the
same, does not now entitle him to additional time to respond.

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claims. In his Objection, Plaintiff argues that he did not complete the administrative process
because it would have been futile. However, the Tenth Circuit has held that futility does not
excuse exhaustion under the Prison Litigation Reform Act. See Jernigan v. Stuchell, 304
F.3d 1030, 1032 (10th Cir. 2002). To the extent Plaintiff argues that he was prevented from
exhausting and therefore exhaustion should be excused, there is no evidentiary support for
this argument.
Judge Erwin also noted that Plaintiff’s claims against Defendants Deboe, Hood, Lee,
Moles, and Province in their official capacities are barred by the Eleventh Amendment.
Plaintiff’s Objection offers no basis to question the propriety of this recommendation and it
will be adopted.
Judge Erwin recommended judgment be entered in favor of Defendants Caldwell and
Miller based on Plaintiff’s failure to raise questions of fact about these Defendants’ personal
participation in the alleged wrongs. Although Plaintiff offers some legal argument which he
claims demonstrates error in Judge Erwin’s reasoning, he has failed to counter the undisputed
material facts relied on by Judge Erwin. Those facts establish that neither Defendant
Caldwell nor Defendant Miller participated in the wrongs alleged by Plaintiff in a manner
that would give rise to liability. Accordingly, Judge Erwin’s R&R will be adopted on this
issue.
Finally, Plaintiff does not address Judge Erwin’s recommendation that the claims
against Defendant Lee be dismissed for failure to serve, or that even if Defendant Lee had

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been served, that the claims against her would be subject to dismissal for the above noted
reasons. Therefore, that recommendation will also be adopted.
As set forth more fully herein, the Court adopts, in full, the Report and
Recommendation of the Magistrate Judge (Dkt. No. 183). The Motion to Dismiss/Motion
for Summary Judgment of Defendants Deboe, Hood, Lee, Moles, and Province (Dkt. No.
161) is GRANTED; the Motion for Summary Judgment of Defendants Miller and Caldwell
(Dkt. No. 163) is GRANTED; and the Joint Motion for Judgment of all Defendants (Dkt. No.
181) is GRANTED. A judgment will enter accordingly.
IT IS SO ORDERED this 15th day of March, 2013.

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