Nelson et al v. Barton et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Bana Roberts and dismisses plaintiffs Dotson, Ali, Allen, Wright, Siebert, Bolton and Nix from this action without prejudice to their refiling their claims in separate lawsuits...plaintiff Nelson's claims remain for recommeded resolution by the Magistrate Judge. Signed by Honorable Joe Heaton on 06/29/2012. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WENDELL TERRY NELSON, et al.,
Plaintiff,
vs.
B. BARTON, et al.,
Defendants.

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NO. CIV-12-08-HE

ORDER
Plaintiff Wendell Terry Nelson, a California prisoner appearing pro se,1 filed this
action pursuant to 42 U.S.C. § 1983, apparently along with seven other prisoners who signed
the complaint, on behalf of themselves and all other similarly situated Muslims. Consistent
with 28 U.S.C. § 636(b)(1)(B) and (C), the matter was referred to Magistrate Judge Bana
Roberts for initial proceedings. The court previously adopted her recommendation that
plaintiffs’ motion to certify a class be denied and the magistrate judge now recommends that
plaintiffs Dotson, Ali, Allen, Wright, Siebert, Bolton and Nix be dismissed from the action
without prejudice to refiling their claims separately.
The magistrate judge determined that, while plaintiff Nelson had stated a plausible
claim for relief, the other plaintiffs had not. She did not recommend allowing the remaining
plaintiffs to amend their claims because she concluded that their permissive joinder was not
feasible. She noted that all plaintiffs must sign every document that is jointly filed, see

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Plaintiff currently is in custody in California. When this lawsuit was filed he was confined
at the North Fork Correctional Facility in Sayre, Oklahoma.

Fed.R.Civ.P. 11(a), but that Mr. Nelson has been transferred to a different facility in
California and, for legitimate security reasons, inmates may be prohibited from
corresponding within and between facilities. The magistrate judge recommended that all
plaintiffs but Mr. Nelson be dismissed.
Plaintiff Dotson was the only plaintiff who filed an objection. The other plaintiffs,
by failing to object to the Report and Recommendation, waived their rights to appellate
review of the factual and legal issues it addressed. United States v. One Parcel of Real
Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996). See 28 U.S.C. § 636(b)(1)(C).
In addition to an objection to the Report and Recommendation, plaintiff Dotson filed
a motion for an extension. His motion for an extension [Doc. #29] is DENIED. Mr. Dotson
Plaintiff sought an extension based on the mistaken assumption that the magistrate judge was
asking him to assume representation of the class, which she did not do.
In his objection, plaintiff Dotson raises again the issue of class certification and
requests the appointment of counsel to represent the class.

Plaintiffs’ request for class

certification was denied by a prior order [Doc. #26], and the court finds no basis for
reconsidering that decision. Mr. Dotson does not otherwise address the magistrate judge’s
Report and Recommendation.
The court agrees with Magistrate Judge Robert’s analysis and her conclusions that,
while plaintiff Nelson has stated a plausible claim for relief, the remaining defendants have
not successfully pleaded a claim and their joinder in this lawsuit is impractical. See Pinson
v. Whetsel, 2007 WL 428191 (W.D.Okla. Feb. 1, 2007) (compiling cases discussing multi2

prisoner litigation and practical difficulties of joint litigation involving inmates).
Accordingly, the court adopts Magistrate Roberts’ Report and Recommendation and
dismisses plaintiffs Dotson, Ali, Allen, Wright, Siebert, Bolton and Nix from this action
without prejudice to their refiling their claims in separate lawsuits. Plaintiff Nelson’s claims
remain for recommended resolution by the magistrate judge.
IT IS SO ORDERED.
Dated this 29th day of June, 2012.

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