Gonzalez v. Department of Corrections et al

Filing 41

ORDER adopting Report and Recommendations re 38 Report and Recommendation.; denying as moot 39 Motion to Quash; denying as moot 40 Motion to Quash. Signed by Honorable Timothy D. DeGiusti on 1/26/20156. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARGARITA GONZALEZ,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
JUSTIN JONES, et al.,
Defendants.

Case No. CIV-14-291-D

ORDER
Plaintiff, Margarita Gonzalez, a Texas state prisoner appearing with counsel,1 brings this
civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of her federal constitutional rights
and also brings supplemental state law claims. In accordance with 28 U.S.C. § 636(b)(1)(B) and (C),
the matter was referred to United States Magistrate Judge Gary Purcell for initial proceedings. In
a Second Supplemental Report and Recommendation [Doc. No. 38] issued on December 29, 2014,
the Magistrate Judge recommended dismissal of the remaining Defendants, Fuller, Paxson, Fox,
Delosier, Johnson, Anajobi, Simon, Holmes, and Bennett, on grounds Plaintiff did not timely serve
these defendants as required by Fed. R. Civ. P. 4(m).
The Magistrate Judge specifically advised the parties of their right to object to the findings
and recommendations set forth in the Second Supplemental Report and Recommendation. He
further advised the parties that failure to timely object would constitute a waiver of their right to
appellate review of the factual and legal matters in the Report and Recommendation. The parties’
deadline for filing objections was January 20, 2015.

1

As the Magistrate Judge noted, Plaintiff is represented by two attorneys, Michael Arnett and
Justin Lowe. Neither attorney, however, has entered an appearance in this action as required by
LCvR 83.4.

To date, the parties have not filed an objection to the Second Supplemental Report and
Recommendation or sought an extension of time in which to do so. Moreover, the Court has
reviewed the Second Supplemental Report and Recommendation and agrees with the analysis set
forth therein.
The record reflects that Motions to Quash [Doc. Nos. 39-40] have been filed by Defendants
Paxson, Delozier and Rosas.2 In light of the Magistrate Judge’s Second Supplemental Report and
Recommendation and the instant Order adopting the same, the Motions to Quash are moot.
IT IS THEREFORE ORDERED that the Second Supplemental Report and Recommendation
[Doc. No. 38] is ADOPTED in its entirety. The action is dismissed without prejudice against the
remaining defendants, Fuller, Paxson, Fox, Delosier, Johnson, Anajobi, Simon, Holmes, and
Bennett, on grounds Plaintiff did not timely serve these defendants as required by Fed. R. Civ. P.
4(m).
IT IS FURTHER ORDERED that the Motions to Quash [Doc. Nos. 39-40] of Defendants
Paxson, Delozier and Rosas are denied as MOOT.
A separate judgment of dismissal will be entered herewith.
IT IS SO ORDERED this 26th day of January, 2015.

2

Defendant Melissa Rosas states that she has been identified by Plaintiff as Melissa Fox. See
Defendant Melissa Rosas’ Motion to Quash [Doc. No. 40] at p. 1, footnote 1.
2