Fisher v. Figueroa et al

Filing 48

ORDER ADOPTING 46 Report and Recommendation, GRANTING IN PART AND DENYING IN PART 15 Motion for Summary Judgment filed by Officer Johnson, Melissa Lee, Fred Figueroa. Dfts are GRANTED summary jdgt on the first & third claims alleged in this action, & dfts' mtn for summary jdgt is DENIED w/respect to the second claim. As a result, only the second claim remains for adjudication. A scheduling order will be entered in due course. Signed by Honorable Stephen P. Friot on 2/22/13. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MELVIN FISHER,

)
)
Plaintiff,
)
)
vs.
)
)
WARDEN FRED E. FIGUEROA (CCA),
)
et al.,
)
)
Defendants.
)

Case No. CIV-12-0231-F

ORDER
Magistrate Judge Robert E. Bacharach’s Report and Recommendation of
January 7, 2013 (the Report) recommends summary judgment in favor of the
defendants on the first and third claims of the complaint, based on the finding that
plaintiff failed to exhaust his administrative remedies on those claims. (Defendants’
motion to dismiss was converted by the Magistrate Judge to a motion for summary
judgment.) The Report recommends denial of the motion for summary judgment on
the second claim, finding (after briefing as well as oral argument before the Magistrate
Judge) that “the Plaintiff did not fail to exhaust administrative remedies available to
him and the Court should deny summary judgment on the second claim.” Doc. no. 46,
p. 11.
The second claim alleges that defendant Officer Johnson provided inadequate
protection to the plaintiff during a riot. Defendant Johnson objected to the Report’s
recommendation with respect to the second claim, arguing that plaintiff failed to
exhaust his administrative remedies with respect to that claim. Doc. no. 47.
After review, including de novo review of all objected to matters, the court
concludes that it agrees with the recommendations of the Magistrate Judge and that

no further analysis is necessary here. Defendant Johnson’s objections to the Report
are DENIED; the Report is ACCEPTED, ADOPTED and AFFIRMED; and, in
conformity with the recommendation of the Magistrate Judge’s Report, defendants’
motion for summary judgment, doc. no. 15, is GRANTED IN PART and DENIED
IN PART. Specifically, defendants are GRANTED summary judgment on the first
and third claims alleged in this action, and defendants’ motion for summary judgment
is DENIED with respect to the second claim.
As a result, only the second claim remains for adjudication. A scheduling order
will be entered in due course.
Dated this 22nd day of February, 2013.

12-0231p001.wpd

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