Taber v. Jones et al

Filing 25

ORDER granting 20 Motion to Dismiss; adopting Report and Recommendations re 22 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 5/30/2013. (mb)

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

BARCLAY TABER,
Plaintiff,
v.
JUSTIN JONES, Director, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. CIV-12-1113-D

ORDER
This matter is before the Court for review of the Supplemental Report and Recommendation
issued by United States Magistrate Judge Gary M. Purcell, pursuant to 28 U.S.C. § 636(b)(1)(B).
Upon consideration of Defendant Justin Jones’ Motion to Dismiss,1 Judge Purcell recommends the
dismissal of Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 for failure to state a
claim under Fed. R. Civ. P. 12(b)(6), and counting the dismissal as one “prior occasion” or “strike”
under 28 U.S.C. § 1915(g).
Plaintiff, who appears pro se and in forma pauperis, has neither filed a timely objection to
the Supplemental Report nor requested additional time to object. The Court therefore finds Plaintiff
has waived further review. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also
United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Further, upon de novo
consideration of the issues, the Court finds Judge Purcell’s analysis to be correct. The Court concurs
in Judge Purcell’s recommendation to dismiss this action without prejudice.

1

Plaintiff’s request to voluntarily dismiss two other named defendants was previously granted. See
Order of April 2, 2013 [Doc. No. 17].

IT IS THEREFORE ORDERED that the Court adopts the Supplemental Report and
Recommendation [Doc. No. 22] in its entirety. Defendant Justin Jones’ Motion to Dismiss [Doc.
No. 20] is GRANTED to the extent that the Civil Rights Complaint Pursuant to 42 U.S.C. § 1983
is dismissed without prejudice for failure to state a claim upon which relief can be granted. The
dismissal shall count as a “prior occasion” pursuant to 28 U.S.C. § 1915(g) after Plaintiff has
exhausted or waived his right to appeal. A separate judgment shall be entered accordingly.
IT IS SO ORDERED this 30th day of May, 2013.

2