Jaquez v. Oklahoma Department of Corrections et al

Filing 82

ORDER ADOPTING 77 Report and Recommendation; ADOPTING 78 Report and Recommendation; GRANTING 39 Motion to Dismiss filed by Justin Jones, Mike Carpenter (as set forth in this Order); GRANTING IN PART and DENYING IN PART 61 Motion to Dism iss/Motion for Summary Judgment filed by Sabier Hildner, Sgt Brashears, Rick Whitten, W M Bjork, Sgt Hill, C Chester, Ms Stouffer (as set forth in this Order); REFERRING CASE to Magistrate Judge Suzanne Mitchell. 68 Motion to Appoint Couns el filed by Henry Joseph Jaquez remains pending to be addressed by Magistrate Judge Mitchell; 70 Motion for Protective Order filed by LCF Defendants remains pending to be addressed by Magistrate Judge Mitchell. Mike Carpenter (Chief of Securit y), C Chester (Warden), Sabier Hildner (Correctional Officer), Sgt Hill, Justin Jones (Director DOC), Lawton Correctional Facility, Ms Stouffer (Health Administrator), W M Bjork (Sgt, LCF), and Sgt Brashears (Correctional Officer) terminated. Signed by Honorable Stephen P. Friot on 6/12/13. (llg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

HENRY JOSEPH JAQUEZ,
Plaintiff,
-vsLAWTON CORRECTIONAL
FACILITY, et al.,
Defendants.

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Case No. CIV-11-1066-F

ORDER
United States Magistrate Judge Suzanne Mitchell issued two report and
recommendations on April 23, 2013. In the first report and recommendation (doc. no.
77), Magistrate Judge Mitchell recommended that the motion to dismiss and/or motion
for summary judgment (doc. no. 61) filed by defendants, C. Chester, Rick Whitten,
Sgt. Brashears, Sgt. Bjork, Sgt. Hill, Mrs. Stouffer and Sabier Hildner be granted in
part and denied in part. In the second report and recommendation (doc. no. 78),
Magistrate Judge Mitchell recommended that the motion to dismiss (doc. no. 39) filed
by defendants, Justin Jones and Mike Carpenter, be granted and that certain claims
against these defendants be dismissed on screening.
Magistrate Judge Mitchell advised the parties of their right to object to the
report and recommendations by May 13, 2013 and that failure to make timely
objection to the report and recommendations waives the right to appellate review of
both factual and legal issues therein contained. To date, only defendant, Rick
Whitten, has filed an objection. Defendant Whitten objects to the first report and

recommendation to the extent Magistrate Judge Mitchell’s recommends denial of
summary judgment or dismissal of plaintiff’s Eighth Amendment claims against
defendant Whitten involving a lack of sheets or blankets (claim 2(b)), hygiene items
(claim 3(b)), clean clothes (claim 4), and writing supplies etc. (claim 6), from July 18,
2011 to August 2, 2011.
In accordance with 28 U.S.C. § 636(b)(1), the court has conducted a de novo
review of that portion of the first report and recommendation to which defendant
Whitten has specifically objected. Having done so, the court concurs in the analysis
and recommendation of Magistrate Judge Mitchell regarding plaintiff’s claims 2(b),
3(b), 4 and 6 against defendant Whitten. The court finds defendant Whitten’s
objections to be without merit. The court therefore accepts, affirms and adopts that
portion of the first report and recommendation to which defendant Whitten has
specifically objected.
As to the other portions of the first report and recommendation to which no
objection has been filed and to which no request for an extension of time to file an
objection has been sought, the court accepts, adopts and affirms those portions in their
entirety.
No objection has been filed to the second report and recommendation within
the time prescribed by Magistrate Judge Mitchell and no request for an extension of
time to file an objection has been submitted. Consequently, the court accepts, adopts
and affirms the second report and recommendation in its entirety.
IT IS THEREFORE ORDERED that the Report and Recommendation on the
Motion to Dismiss/Motion for Summary Judgment by the Private Prison Defendants
(doc. no. 77) and the Report and Recommendation on the Motion to Dismiss by
Defendants Jones and Carpenter (doc. no. 78), both issued by United States Magistrate
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Judge Suzanne Mitchell on April 23, 2013, are ACCEPTED, ADOPTED and
AFFIRMED.
IT IS ALSO ORDERED that Defendants Justin Jones and Mike Carpenter’s
Motion to Dismiss (doc. no. 39) is GRANTED. Plaintiff’s claims against defendants,
Justin Jones and Mike Carpenter, are dismissed pursuant to Rule 12(b)(6), Fed. R.
Civ. P., and 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS ADDITIONALLY ORDERED that the Motion to Dismiss/Motion for
Summary Judgment filed by defendants, C. Chester, Rick Whitten, Sgt. Brashears,
Sgt. Bjork, Sgt. Hill, Mrs. Stouffer and Sabier Hildner is GRANTED IN PART and
DENIED IN PART. Summary judgment is entered in favor of defendants on claims
1, 2(a), 5, 7(a), 9(c), 11, 12, 13, 14, 15 and 16 based on nonexhaustion of
administrative remedies. Claims 3(a), 8, 9(a), (b) and 10 against defendants are
dismissed with prejudice pursuant to Rule 12(b)(6), Fed. R. Civ. P. Claim 7(b) against
defendants is dismissed without prejudice pursuant to Rule 12(b)(6), Fed. R. Civ. P.,
for failure to state a claim. Claims 2(b), 3(b), 4 and 6 against defendants, C. Chester
and Mrs. Stouffer, are dismissed without prejudice pursuant to Rule 12(b)(6), Fed. R.
Civ. P., for lack of personal participation.
IT IS ADDITIONALLY ORDERED that claims 2(b), 3(b), 4 and 6 against
defendant, Rick Whitten, remain pending.
IT IS FURTHER ORDERED that this action is referred to United States
Magistrate Judge Suzanne Mitchell in accordance with 28 U.S.C. § 636 to conduct
any necessary hearings, including evidentiary hearings, for the entry of appropriate
orders as to non-dispositive matters, and for the preparation and submission to the

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undersigned judge of proposed findings and recommendations as to dispositive
matters referenced in 28 U.S.C. § 636(b)(1)(B) and (C).1
DATED June 12, 2013.

11-1066p003.wpd

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The court notes that there are two motions, not addressed in the report and
recommendations, which remain pending. They are plaintiff’s Motion for Appointment of Counsel
Made Under the Penalty of Perjury (doc. no. 68) and the LCF Defendants’ Motion for Protective
Order (doc. no. 70). The court leaves those non-dispositive motions to be addressed by Magistrate
Judge Mitchell.

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