Vernon v. Slabotsky et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION 37 of Magistrate Judge Gary Purcell...plaintiff failed to object to the Supplemental Report and Recommendation and thereby waived his right to appellate review...accordingly the court adopts the Supplemental Report and Recommendtion and dismisses the action without prejudice. Signed by Honorable Joe Heaton on 03/04/2015. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARK VERNON,
Plaintiff,
vs.
BRIAN SLABOTSKY, et al.,
Defendants.

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NO. CIV-14-0164-HE

ORDER
Plaintiff Mark Vernon, proceeding pro se, filed this § 1983 action alleging violations
of his constitutional rights. The matter was referred for initial proceedings to Magistrate
Judge Gary M. Purcell, consistent with 28 U.S.C. § 636(b)(1)(B). He has recommended that
the action be dismissed without prejudice due to plaintiff’s failure to prosecute and serve the
defendants with process after being granted an extension of time to do so.
Plaintiff was directed to serve defendants in accordance with the Federal Rules of
Civil Procedure on May 7, 2014, and was informed that service had to be completed within
120 days. He was advised both on May 7 and on August 14, 2015, that service was his
responsibility and that failure to timely file proof of service could result in dismissal of the
action. The magistrate judge directed plaintiff on November 24, 2014, to show cause for his
failure to effect service. Plaintiff responded to the magistrate judge’s order and was granted
a 30 day extension of time to complete service of process upon the defendants. When the 30
day period expired and plaintiff had not filed returns reflecting service or demonstrated good
cause for another extension of time, the magistrate judge concluded the action should be

dismissed without prejudice. Although he noted that some of plaintiff’s claims might be
time-barred, the magistrate judge decided dismissal was appropriate as plaintiff had failed
to show that he had made any attempt to complete service of process upon any defendant in
the thirteen months that the action had been pending.
Plaintiff failed to object to the Supplemental Report and Recommendation and thereby
waived his right to appellate review of the factual and legal issues it addressed. United States
v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996); see 28 U.S.C.
§636(b)(1)(C). Accordingly, the court adopts the Supplemental Report and Recommendation
and dismisses the action without prejudice.
IT IS SO ORDERED.
Dated this 4th day of March, 2015.

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