Dease v. Barney et al

Filing 69

ORDER ADOPTING 66 Report and Recommendation; ADOPTING 67 Report and Recommendation; GRANTING (as set forth in detail in this order) 60 Motion to Dismiss and/or for Summary Judgment filed by Ortiz, Rover Alverez, Marler, John Whetsel; DISMISSING without prejudice dfts S May, Lt Barney. Signed by Honorable Stephen P. Friot on 12/15/15. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM HENRY DEASE,
Plaintiff,
-vsJOHN WHETSEL; LT. BARNEY;
S. MAY; SGT. MARLAR; CORPAL
[sic] ORTIZ; ROVER ALVEREZ,
Defendants.

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Case No. CIV-14-0673-F

ORDER
Plaintiff, a prisoner who appears pro se and whose pleadings are liberally
construed, filed an amended complaint under 42 U.S.C. § 1983, alleging that
defendants violated his constitutional rights. Magistrate Judge Suzanne Mitchell has
made two Reports and Recommendations to this court. As stated in more detail
below, each of the Reports, and all of their recommendations, are adopted in this
order. As a result, all claims alleged in this action have been adjudicated or otherwise
disposed of, and judgment will be entered accordingly.
The Report and Recommendation of October 29, 2015.
Defendants Alverez, Marler, Ortiz and Whetsel moved to dismiss. Doc. no. 60.
The magistrate judge notified the parties the motion would be treated as a motion to
dismiss and/or as a motion for summary judgment. Doc. no. 61. The Report of
October 29, 2015, doc. no. 66, recommends dismissal with prejudice of plaintiff’s
individual- and official-capacity claims alleging inadequate grievance procedures,
denial of access to the courts, and conspiracy to deny access to the courts. The Report
recommends dismissal without prejudice of plaintiff’s individual- and official-capacity

claims involving his alleged denial of medical treatment at the Oklahoma County
Detention Center (OCDC) following his September 2013 arrest, temporary subjection
to toilet flooding and fecal matter, and denial of access to a medically-assigned bunk.
The Report recommends the court grant summary judgment on plaintiff’s allegations
of retaliation and regarding defendant Whetsel’s alleged involvement in plaintiff’s
September 2013 arrest. The Report also recommends denial of plaintiff’s requests for
injunctive and declaratory relief, as well as plaintiff’s request for appointed counsel.
The October 29 Report advises plaintiff of his right to file an objection to the
Report by November 18, 2015. The Report further advises that failure to make timely
objection to the Report waives plaintiff’s right to appellate review of both factual and
legal issues contained in the Report.
Plaintiff has not filed an objection or response to the Report, and plaintiff has
not sought an extension of time within which to file any objection or response.
After review of the issues covered in the Report, with no objection having been
filed, and having concluded that no further analysis is necessary, the October 29, 2015
Report and Recommendation is ACCEPTED, ADOPTED and AFFIRMED in its
entirety.
Accordingly, the motion to dismiss and/or for summary judgment is
GRANTED, as follows. The claims which are hereby DISMISSED with prejudice
are plaintiff’s individual- and official-capacity claims alleging inadequate grievance
procedures, denial of access to the courts, and conspiracy to deny access to the courts.
The claims which are hereby DISMISSED without prejudice are plaintiff’s
individual- and official-capacity claims involving his alleged denial of medical
treatment at OCDC following plaintiff’s September 2013 arrest, temporary subjection
to toilet flooding and fecal matter, and denial of access to a medically-assigned bunk.
Defendants are GRANTED SUMMARY JUDGMENT on plaintiff’s allegations of
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retaliation and defendant Whetsel’s involvement in plaintiff’s September 2013 arrest.
Plaintiff’s requests for injunctive and declaratory relief, and plaintiff’s request for
appointed counsel, are DENIED.
2. The Report and Recommendation of November 5, 2015.
The Report of November 5, 2015, doc. no. 67, recommends that the court
dismiss defendants S. May and Lt. Barney without prejudice, for lack of service.
The Report advises plaintiff of his right to file an objection to the Report by
November 25, 2015. The Report further advises that failure to make timely objection
to the Report waives plaintiff’s right to appellate review of both factual and legal
issues contained in the Report.
Plaintiff has not filed an objection or response to the Report, and plaintiff has
not sought an extension of time within which to file any objection or response.
After review of the issues covered in the Report, with no objection having been
filed, and having concluded that no further analysis is necessary, the November 5,
2015 Report and Recommendation is ACCEPTED, ADOPTED and AFFIRMED
in its entirety. Defendants S. May and Lt. Barney are hereby DISMISSED without
prejudice.
Dated this 15th day of December, 2015.

14-0673p004.wpd

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