Free v. Garcia et al

Filing 44

ORDER ADOPTING 42 Report and Recommendation, GRANTING, as set forth in this order, 39 Motion to Dismiss/Motion for Summary Judgment filed by Paul Lawrence, Patricia Garcia. This action is DISMISSED w/o prejudice. Signed by Honorable Stephen P. Friot on 3/11/15. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WESLEY D. FREE,
Plaintiff,
vs.
PATRICIA GARCIA, et al.,
Defendants.

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Case No. CIV-13-0048-F

ORDER
Plaintiff Wesley D. Free, appearing pro se, brings this action under 42 U.S.C.
§ 1983. Magistrate Judge Charles B. Goodwin issued a Report and Recommendation,
doc. no. 42 (the Report), recommending that the court: 1) grant summary judgment
to defendants on plaintiff’s religious diet claims under the First Amendment, for
failure to exhaust administrative remedies; 2) dismiss any remaining diet-related
eighth amendment claims for failure to state a claim; and 3) strike plaintiff’s claim for
violation of his right to access the courts or dismiss that claim for failure to state a
claim. Doc. no. 42, p. 19.
The Report advised the parties that failure to make timely objection to the
Report by February 20, 2015 waives the right to appellate review of both factual and
legal matters contained in the Report. On February 13, 2015, plaintiff filed a
document entitled “Motion to Object to Summary Judgment for the Defendants and
Motion for Summary Judgment for the Plaintiff.” Construing plaintiff’s pleadings

liberally, the court construes this filing as an objection to the Report, addressing
plaintiff’s failure to exhaust administrative remedies. Doc. no. 43. All objected to
matters are reviewed de novo.1
After review, the court finds that it agrees with the Report of the Magistrate
Judge and that no purpose would be served by stating any further analysis here.
Accordingly, plaintiff’s objection to the Report and Recommendation of Magistrate
Judge Goodwin is DENIED, and the Report and Recommendation is ACCEPTED,
ADOPTED and AFFIRMED. As recommended in the Report, defendants’ motion
at doc. no. 39 is GRANTED as follows. 1) Summary judgment is GRANTED to
defendants under Rule 56(a), Fed. R. Civ. P., on plaintiff’s religious diet claims under
the First Amendment because plaintiff failed to exhaust his administrative remedies
before filing this lawsuit. 2) Any remaining diet-related eighth amendment claims
are dismissed under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon
which relief may be granted. 3) Plaintiff’s claim for violation of his right to access
the courts is dismissed for failure to state a claim upon which relief may be granted.
See, 28 U.S.C. § 1915A(b)(1), 42 U.S.C. § 1997e(c), and Ashcroft v. Iqbal, 556 U.S.

1

Plaintiff’s objection makes certain statements in support of exhaustion which were not
presented to the magistrate judge. Compare p. 1 of doc. no. 43 (objection to the Report) to
plaintiff’s response, at doc. no. 40, to the motion to dismiss and for summary judgment. The court
does not consider arguments or evidence presented for the first time in plaintiff’s objection to the
Report. See, United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“theories raised for
the first time in objections to the magistrate judge’s report are deemed waived”); Muhleisen v.
Principi, 73 Fed. Appx. 320, 322 (10th Cir. 2003) (district court was under no obligation to consider
evidence introduced for the first time in an objection to the magistrate judge’s recommendation),
unpublished. (If the court were to consider plaintiff’s new statements, which it does not, the
statements would not change the result.)

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662, 678-79 (2009).

These rulings dispose of all claims and this action is

DISMISSED without prejudice.
Dated this 11th day of March, 2015.

13-0048p003.wpd

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