Nelson et al v. Barton et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Bana Roberts 33 and dismisses case without prejudice to refiling. Signed by Honorable Joe Heaton on 09/11/2012. (lam)

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

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NO. CIV-12-0008-HE

ORDER
Plaintiff Wendell Terry Nelson, a California prisoner appearing pro se, filed this
action pursuant to 42 U.S.C. § 1983, 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), the matter was referred to Magistrate Judge Bana Roberts for
initial proceedings. The court previously adopted the magistrate judge’s recommendations
that plaintiffs’ motion to certify a class be denied and 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 has now recommended that the claims of the
remaining plaintiff, Mr. Nelson, be dismissed without prejudice.
Because he had been transferred to a California state prison and was close to being
released, the magistrate judge ordered plaintiff Nelson to submit an amended application to
proceed in forma pauperis (“ifp”) to insure he remained qualified for ifp status. When
plaintiff failed to comply with the magistrate judge’s order, she recommended the dismissal
of the action without prejudice. Plaintiff did not object to the Report and Recommendation

and thus waived his right to appellate review of the 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).
Accordingly, the court adopts Magistrate Roberts’ Report and Recommendation and
dismisses this action without prejudice to refiling.
IT IS SO ORDERED.
Dated this 11th day of September, 2012.