Jaquez v. Oklahoma Department of Corrections et al

Filing 88

ORDER ADOPTING 87 Report and Recommendation, DENYING AS MOOT 68 Motion to Appoint Counsel filed by Henry Joseph Jaquez, DENYING AS MOOT 70 Motion for Protective Order filed by Sabier Hildner, Sgt Brashears, Rick Whitten, W M Bjork, Sgt Hill, C Chester, Ms Stouffer. Claims 2(b), 3(b), 4 & 6 alleged by plf in his complaint against dft Rick Whitten, in his individual & official capacities, are DISMISSED W/O PREJUDICE pursuant to Rule 41(b), Fed.R.Civ.P., for plf's failure to comply with ct's rules & order. Plf's action against dft Lawton Correctional Facility is DISMISSED W/O PREJUDICE under 28 USC §1915e(2)(B)(ii). Plf's claims against dfts C Chester, Sgt Brashears, Sgt Bjork, Sgt Hill, Mrs. Stouffe r & Sabier Hildner, in their official capacities, & the claims against dft Rick Whitten, in his official capacity, other than claims 2(b), 3(b), 4 & 6, are DISMISSED W/O PREJUDICE pursuant to Rule 41(b), Fed.R.Civ.P., for plf's failure to comply with ct's rules and order. Signed by Honorable Stephen P. Friot on 11/8/13. (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
On October 3, 2013, United States Magistrate Judge Suzanne Mitchell issued
a Report and Recommendation, wherein she recommended that the remaining claims
against defendant, Rick Whitten, be dismissed without prejudice, pursuant to Rule
41(b), Fed. R. Civ. P., for plaintiff’s failure to comply with the court’s rules and order.
Specifically, plaintiff had failed to supplement his financial information through
completion of an updated motion for leave to proceed in forma pauperis and to notify
the court and defendant, Rick Whitten, of his current address. Magistrate Judge
Mitchell advised the parties of their right to file an objection to the Report and
Recommendation by October 23, 2013 and that failure to make a timely objection
waives the right to appellate review of both factual and legal questions therein
contained.
To date, plaintiff has not filed an objection to the Report and Recommendation
and has not requested an extension of time to file an objection. With no objection
being filed, the court accepts, adopts and affirms the Report and Recommendation in
its entirety.
Upon further review of the record, the court notes that Lawton Correctional
Facility was named as a defendant in this action. Lawton Correctional Facility is a

private prison facility owned and operated by Geo Group, Inc. Carey v. Lawton
Correctional Facility, Case No. CIV-07-944-F, 2008 WL 200053 *1 (W.D. Okla. Jan.
24, 2008). Any claims against it were not addressed in the previous reports and
recommendations or in the court’s June 12, 2013 order. The court, nonetheless,
concludes that dismissal without prejudice of plaintiff’s action against Lawton
Correctional Facility is appropriate under 28 U.S.C. § 1915e(2)(B)(ii), in that a
detention facility, such as Lawton Correctional Facility, is not a person or a legally
created entity capable of being sued. Aston v. Cunningham, No. 99-4156, 2000 WL
796086 at *4 n. 3 (10th Cir. 2000), cited as persuasive value pursuant to 10th Cir.
32.1(A); Carey, 2008 WL 200053 * 3 (Lawton Correctional Facility lacks capacity to
be sued).
It also appears to the court, upon further review of the record, that the previous
reports and recommendations and the court’s order of June 12, 2013 did not address
the official capacity claims against defendants, C. Chester, Sgt. Brashears, Sgt. Bjork,
Sgt. Hill, Mrs. Stouffer and Sabier Hildner, and certain of the official capacity claims
against defendant, Rick Whitten. The report and recommendation addressing the
private prison defendants’ motion to dismiss/motion for summary judgment stated that
the private prison defendants had moved for dismissal and/or summary judgment in
their “individual” capacities. See, doc. no. 77, p. 2. Based upon plaintiff’s failure to
comply with the court’s Local Civil Rules by failing to notify the court of his current
address1 and failure to comply with Magistrate Judge Mitchell’s order by failing to
complete an updated motion for leave to proceed in forma pauperis, the court also

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Rule 5.4(a) of the court’s Local Civil Rules provides that “[a]ll papers shall contain the
name, mailing address, daytime telephone number, . . . if any, of the . . . pro se litigant. If any of this
information changes, the . . . pro se litigant must notify the Court by filing the form provided by the
Clerk and serving a copy on opposing counsel or pro se parties.” LCvR 5.4(a) (emphasis added).
Rule 83(a), Fed. R. Civ. P., provides that a “district court . . . may adopt and amend rules governing
its practice.”

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finds that plaintiff’s claims against defendants should likewise be dismissed pursuant
to Rule 41(b), Fed. R. Civ. P.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Suzanne Mitchell on October 3, 2013 is ACCEPTED, ADOPTED
and AFFIRMED.
Claims 2(b), 3(b), 4 and 6 alleged by plaintiff, Henry Joseph Jaquez, in his
complaint against defendant, Rick Whitten, in his individual and official capacities,
are DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b), Fed. R. Civ. P.,
for plaintiff’s failure to comply with the court’s rules and order.
Plaintiff’s action against defendant, Lawton Correctional Facility, is
DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915e(2)(B)(ii).
Plaintiff’s claims against defendants, C. Chester, Sgt. Brashears, Sgt. Bjork,
Sgt. Hill, Mrs. Stouffer and Sabier Hildner, in their official capacities, and the claims
against defendant, Rick Whitten, in his official capacity, other than claims 2(b), 3(b),
4 and 6, are DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b), Fed. R.
Civ. P., for plaintiff’s failure to comply with the court’s rules and order.
In light of the court’s ruling, plaintiff’s motion for appointment of counsel (doc.
no. 68) and defendant, Rick Whitten’s motion for protective order (doc. no. 70), are
DENIED as MOOT.
Judgment shall issue forthwith.
DATED November 8, 2013.

11-1066p004.wpd

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