Green v. Smith et al

Filing 79

ORDER ADOPTING 77 REPORT AND RECOMMENDATION. Signed by Honorable Robin J. Cauthron on 5/19/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BOBBY ALLAN GREEN,
Plaintiff,
vs.
JEFF SMITH, DAVID PRATER,
and MEGAN KOENIG,
Defendants.

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No. CIV-13-601-C

ORDER
This civil rights action brought by a prisoner, proceeding pro se, was referred to
United States Magistrate Judge Suzanne Mitchell, consistent with the provisions of 28 U.S.C.
§ 636(b)(1)(B). Judge Mitchell entered a Report and Recommendation on April 16, 2015,
recommending denial of Defendant Koenig’s Motion for Summary Judgment, but
recommending dismissal of all remaining claims for Plaintiff’s failure to comply with Court
orders. Defendant Koenig has timely objected. The Court therefore considers the matter de
novo.
Defendant Koenig concedes her Motion for Summary Judgment is directed to a state
claim for malicious prosecution, not the constitutional claims actually stated by Plaintiff. She
argues the test is the same; summary judgment should be granted; and/or offers to supply
additional briefing. It is not proper for the Court to “take on the responsibility of serving as
the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). This prohibition applies
equally to all litigants, whether pro se, counseled, plaintiff, or defendant. Thus changing

Defendant Koenig’s summary judgment theory to what she could have argued (but did not)
is inappropriate. Defendant offers no objection to Judge Mitchell’s recommendation that all
remaining claims be dismissed.
Accordingly, the Report and Recommendation of the Magistrate Judge is adopted in
its entirety, and Defendant Megan Koenig’s Motion for Summary Judgment (Dkt. No. 71),
Motion to Deem Motion for Summary Judgment Confessed (Dkt. No. 74), Errata to Correct
Exhibit 1 to Defendant to Defendant Megan Koenig’s Motion to Deem Motion for Summary
Judgment Confessed (Dkt. No. 75) are DENIED.

Plaintiff’s remaining claims are

DISMISSED WITHOUT PREJUDICE for failure to comply with a Court Order.
IT IS SO ORDERED this 19th day of May, 2015.

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