Barber v. Sutmiller et al

Filing 104

ORDER ADOPTING 96 REPORT AND RECOMMENDATION; mailed to Bradley Price Barber #177189 CUSHING-CCF Cimarron Correctional Facility 3200 S Kings HWY Cushing, OK 74023-5337. Signed by Honorable Robin J. Cauthron on 12/7/16. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BRADLEY PRICE BARBER,
Plaintiff,
vs.
DR. DONALD SUTMILLER, et al.,
Defendants.

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No. CIV-15-78-C

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff brought the present action pursuant to 42 U.S.C. § 1983, seeking recompense
for alleged violations of his constitutional rights. Consistent with the provisions of 28 U.S.C.
§ 636(b)(1)(B), this action was referred to United States Magistrate Judge Charles B.
Goodwin. Judge Goodwin entered a Report and Recommendation on August 11, 2016, to
which Plaintiff has timely objected.
The facts and law are accurately set out in the Magistrate Judge’s Report and
Recommendation and there is no purpose to be served in repeating them yet again. With one
exception, each issue raised by Plaintiff in his Objection was considered and rejected by
Judge Goodwin. The sole exception is Plaintiff’s argument that Colorado’s statute of
limitation tolling provision should apply.

However, Plaintiff offers no authority

demonstrating that Colorado law should apply to events that have occurred solely in the state
of Oklahoma. Accordingly, that argument will be rejected. Each of Plaintiff’s other
objections are rejected for the reasons set forth by Judge Goodwin.

Accordingly, the Court adopts, in its entirety, the Report and Recommendation of the
Magistrate Judge (Dkt. No. 96), and for the reasons announced therein:
1.

Plaintiff’s § 1983 claim seeking damages against Defendants Sutmiller, McCoy,
Wagener, and Jones in their official capacities is DISMISSED without prejudice
because these Defendants are immune from such claims.

2.

Plaintiff’s § 1983 claim against Defendants Reiheld, Roof, Miller, CCA, and McCoy
in their individual capacities is DISMISSED with prejudice as time-barred.
Defendants Reiheld, Roof, Miller, CCA, and McCoy are DISMISSED from the
lawsuit.

3.

Plaintiff’s § 1983 claim against Defendant Sutmiller, in his individual capacity, is
DISMISSED with prejudice as time-barred to the extent that claim seeks to recover
for a delay or denial of medical care prior to January 26, 2013.

4.

Plaintiff’s motions concerning his attempts to serve process on Defendants Reiheld
and Roof (Dkt. Nos. 81, 85, 87, 93) are denied as moot.

5.

Plaintiff’s § 1983 conspiracy claim against all Defendants is DISMISSED without
prejudice for failure to state a claim upon which relief can be granted.

6.

Plaintiff’s state-law claim against all Defendants is DISMISSED with prejudice as
time-barred.

This matter is returned to Judge Goodwin for further proceedings consistent with the original
order of referral.
IT IS SO ORDERED this 7th day of December, 2016.

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