Webb v. Rios et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION 6 and dismissing this action without prejudice based upon plaintiffs failure to file an underlying complaint. Signed by Honorable Vicki Miles-LaGrange on 5/28/2015. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER W. WEBB
Plaintiff,
v.
WARDEN (RIOS), C/M COBBINS,
C/M PEREZ, SGT. HILL, and
C/M JONES,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-386-M

ORDER
On April 17, 2015, United States Magistrate Judge Suzanne Mitchell issued a Report and
Recommendation in this action. The Magistrate Judge recommended that the Court dismiss this
action without prejudice based upon plaintiff’s failure to file an underlying complaint.1 The
Magistrate Judge also recommended that the Court inform plaintiff that if he intends to file a
civil rights complaint he should do so on this Court’s civil rights form for 42 U.S.C. § 1983
actions. Further, the Magistrate Judge recommended that the Court remind plaintiff that he has
accrued at least “three strikes” under the Prison Litigation Reform Act, and therefore, if plaintiff
wishes to file a civil rights complaint, he will be required to pay the full $400.00 filing fee. The
plaintiff was advised of his right to object to the Report and Recommendation on or before May
7, 2015. On April 14, 2015, plaintiff filed a Motion to Seek Leave of Court to Add the Following
Supplemental Information and Amendment – D.O.C. Director Patton [docket no. 7], and on

1

Plaintiff filed an Application for (TRO-INJUNCTION) – Motion to Seek Leave of
Court – to – Amend – and Add the Following Supplemental Information. The Magistrate Judge
has construed plaintiff’s motion as a motion for a temporary restraining order (“TRO”) and has
declined to interpret plaintiff’s motion as a motion for a preliminary injunction or civil rights
complaint. Since plaintiff has not filed an underlying complaint, such as a civil rights complaint,
the Court is unable to grant plaintiff any relief under his motion for a TRO.

April 21, 2015, plaintiff filed a Motion to Seek Leave of the Court to Add – the Following Supplemental Information [docket no. 8]. The Court will construe plaintiff’s motions as his
objections to the Magistrate Judge’s Report and Recommendation.
Upon de novo review, the Court:
(1)

ADOPTS the Report and Recommendation [docket no. 6] issued by the
Magistrate Judge on April 17, 2015; and

(2)

DISMISSES this action without prejudice based upon plaintiff’s failure to file an
underlying complaint.

IT IS SO ORDERED this 28th day of May, 2015.