Cotton v. Garfield County Jail et al

Filing 13

ORDER adopting Report and Recommendations re 11 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 1/12/2015. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LEE COTTON,
Plaintiff,
v.
GARFIELD COUNTY JAIL, et al.,
Defendants.

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Case No. CIV-14-1078-D

ORDER
This matter is before the Court for review of the Report and Recommendation of
United States Magistrate Judge Gary M. Purcell issued December 9, 2014, pursuant to 28
U.S.C. § 636(b)(1)(B). Upon initial review of Plaintiff’s civil rights complaint concerning
the conditions of his confinement in the Garfield County Jail, Judge Purcell recommends
dismissing the action without prejudice pursuant to 28 U.S.C. § 1915A(b) and
§ 1915(e)(2)(B) for failure to state a claim on which relief may be granted, and counting the
dismissal as one “prior occasion” or “strike” pursuant to 28 U.S.C. § 1915(g).
Plaintiff, who appears pro se and in forma pauperis, has neither filed a timely
objection to the Report nor requested additional time to object.1 The Court therefore finds
Plaintiff has waived further review. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.
1991); see also United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996).

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Shortly after the Report was issued, a letter from Plaintiff to Judge Purcell requesting a hearing
[Doc. No. 12] was received and filed in the case record. See Motion for Order [Doc. No. 12]. The letter was
apparently written before Plaintiff received a copy of the Report, and Plaintiff has not made any subsequent
filing.

Further, upon de novo consideration of the issues, the Court finds Judge Purcell’s analysis
is correct. The Court thus concurs in Judge Purcell’s recommendation for dismissal without
prejudice.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 11]
is ADOPTED in its entirety. Plaintiff’s action is DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). The dismissal shall be counted
as a “prior occasion” or strike pursuant to 28 U.S.C. § 1915(g) after Plaintiff has exhausted
or waived his right to appeal. A separate judgment shall be entered accordingly.
IT IS SO ORDERED this 12th day of January, 2015.

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