Winrow v. Stell et al

Filing 58

ORDER granting 24 Motion to Dismiss; adopting Report and Recommendations re 57 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 9/10/2014. (mb)

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

BILLY JOE WINROW,
Plaintiff,
v.
SID STELL, et al.,
Defendants.

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Case No. CIV-13-1144-D

ORDER
Plaintiff Billy Joe Winrow, a state prisoner appearing pro se and proceeding in forma
pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of his federal
constitutional rights. In accordance with 28 U.S.C. § 636(b)(1)(B) and (C), the matter was referred
to United States Magistrate Judge Charles B. Goodwin for initial proceedings.
In a Report and Recommendation [Doc. No. 57] issued on August 7, 2014, the Magistrate
Judge recommended granting the Motion to Dismiss [Doc. No. 24] of Defendant Justin Jones,
former director of the Oklahoma Department of Corrections.1 Specifically, the Magistrate Judge
recommended that Plaintiff’s § 1983 claims against Defendant Jones in his official capacity be
dismissed without prejudice on the basis of Eleventh Amendment sovereign immunity.2 The
Magistrate Judge further recommended that Plaintiff’s remaining civil rights claims against
Defendant Jones in his individual capacity alleging violations of Plaintiff’s rights to due process, to

1

In addressing Defendant Jones’ motion, the Magistrate Judge expressly declined to consider matters presented
outside the pleadings and, therefore, construed Defendant Jones’ motion strictly as a motion to dismiss. See Report and
Recommendation at p. 4, footnote 5.
2

As noted by the Magistrate Judge, Robert Patton became Director of the Oklahoma Department of Corrections
on January 17, 2014 and pursuant to Fed. R. Civ. P. 25(d) is properly substituted as a defendant as to all official-capacity
claims against former director Justin Jones. See Report and Recommendation at p. 1, footnote 2.

be free from cruel and unusual punishment and to equal protection under the laws be dismissed
without prejudice for failure to state a claim upon which relief may be granted. In addition, the
Magistrate Judge recommended, pursuant to 28 U.S.C. § 1367(c)(3), that the Court decline to
exercise supplemental jurisdiction over Plaintiff’s state law claims against Defendant Jones. See
generally Nielander v. Board of County Commrs. of County of Republic, Kansas, 582 F.3d 1155,
1172 (10th Cir. 2009).
The Magistrate Judge specifically advised Plaintiff of his right to object to the findings and
recommendations set forth therein. He further advised Plaintiff that his failure to timely object
would constitute a waiver of his right to appellate review of the factual and legal matters in the
Report and Recommendation. Plaintiff’s deadline for filing objections was August 28, 2014.
To date, Plaintiff has not filed an objection to the Report and Recommendation or sought an
extension of time in which to do so. Accordingly, the Court adopts the Report and Recommendation
in its entirety.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 57] is
ADOPTED in its entirety. Defendant Justin Jones’ Motion to Dismiss [Doc. No. 24] is GRANTED.
Plaintiff’s § 1983 claims against Defendant Jones in his official capacity are dismissed without
prejudice on the basis of Eleventh Amendment immunity. Plaintiff’s remaining § 1983 claims
against Defendant Jones in his individual capacity are dismissed without prejudice for failure to state
a claim upon which relief may be granted. Finally, the Court declines to exercise supplemental
jurisdiction over Plaintiff’s state law claims brought against Defendant Jones.

2

The action shall proceed before Magistrate Judge Goodwin pursuant to the initial case
referral as to Plaintiff’s claims brought against the remaining Defendants.
IT IS SO ORDERED this 10th day of September, 2014.

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