Blackburn v. Hanks

Filing 16

ORDER ADOPTING 7 Report and Recommendation, DISMISSING action upon filing pursuant to 28 USC § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted. Upon affirmance or waiver of the opportunity to appeal, this dismissa l constitutes one "strike" pursuant to 28 USC § 1915(g). 8 Plaintiff's objection to the Magistrate Judge's earlier order, doc. no. 5, which granted plf in forma pauperis status but which also required an initial partial filing fee of $14.26 as representing 20% of the average monthly deposits in plf's prison accts for the 6-mo period immediately preceding the filing of the complaint, is DENIED. Signed by Honorable Stephen P. Friot on 10/27/14. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BRYAN KEITH BLACKBURN,
Plaintiff,
vs.
NORMAN HANKS,
Defendant.

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Case No. CIV-14-0723-F

ORDER
Plaintiff Bryan Keith Blackburn, a state prisoner appearing pro se and in forma
pauperis, brings this civil rights action under 42 U.S.C. § 1983. Magistrate Judge
Gary M. Purcell has issued a Report and Recommendation (the Report, doc. no. 7),
recommending that the cause of action be dismissed on filing based on an initial
review of the sufficiency of the complaint. The Report recommends dismissal
pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state a plausible claim upon
which relief may be granted under 42 U.S.C. § 1983.

The Report also notified

plaintiff that dismissal of this cause of action may constitute one “strike” pursuant to
28 U.S.C. § 1915(g) upon affirmance or waiver of plaintiff’s opportunity to appeal.
The Report further advised plaintiff that he had until August 6, 2014, within which to
file any objection to the Report, and that failure to timely object would waive
appellate review of both factual and legal issues contained in the Report.
In its order of July 29, 2014, doc. no. 13, the undersigned granted plaintiff’s
motion for an enlargement of time and extended plaintiff’s deadline for filing any
objection to October 6, 2014. The order reminded plaintiff that failure to timely
object to the Report waives appellate review of both factual and legal issues contained

in the Report. On August 11, 2014, the undersigned denied plaintiff’s motion seeking
to stay this action. Doc. no. 15. In that order the court again reminded plaintiff that
any objection to the Report remained due on October 6, 2014, and that failure to file
a timely objection waives appellate review of both factual and legal issues contained
in the Report. No objection to the Report has been filed, and no motion requesting
an extension of time in that regard has been filed.
Having conducted its own review and with there being no objection, the Report
and Recommendation of Magistrate Judge Purcell is ACCEPTED, ADOPTED and
AFFIRMED. This action is hereby DISMISSED upon filing pursuant to 28 U.S.C.
§ 1915(e)(2)(B) for failure to state a claim upon which relief can be granted, as
recommended by the magistrate judge. Upon affirmance or waiver of the opportunity
to appeal, this dismissal constitutes one “strike” pursuant to 28 U.S.C. § 1915(g).
Plaintiff’s objection to the Magistrate Judge’s earlier order, doc. no. 5, which
granted plaintiff in forma pauperis status but which also required an initial partial
filing fee of $14.26 as representing 20 percent of the average monthly deposits in
plaintiff’s prison accounts for the six-month period immediately preceding the filing
of the complaint, is DENIED. See, objection at doc. no. 8, letter at doc. no. 9.
Dated this 27th day of October, 2014.

14-0723p003.wpd

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