Alexander v. Whetsel et al

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATION 42 of Magistrate Judge Bernard M. Jones...the court grants the motions to dismiss filed by defendants Phillips and the Oklahoma County Public Defender's Office 30 and defendant Whetsel 36 ; the claim s against these defendants and against the Oklahoma Detention Center Staff Personnel and Armark Food Service, Inc. are dismissed for failure to state a claim...the court concludes the motion for appointed counsel should be considered in conjunction with plaintiff's response to the show cause order and refers that motion back to the magistrate judge. Signed by Honorable Joe Heaton on 7/21/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NATHAN DEAN ALEXANDER,
Plaintiff,
vs.
JOHN WHETSEL, Oklahoma County
Sheriff, et al.,
Defendants.

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NO. CIV-15-0484-HE

ORDER
Plaintiff Nathan Dean Alexander, appearing pro se and in forma pauperis, filed this
action asserting claims under §1983. Consistent with 28 U.S.C. §636(b)(1)(B) and (C), the
matter was referred for initial proceedings to Magistrate Judge Bernard M. Jones. He has
recommended that motions to dismiss filed by defendants Phillips and the Oklahoma County
Public Defender’s Office and by defendant Whetsel be granted. He also has concluded that
plaintiff’s claims against defendants Oklahoma County Detention Center Staff Personnel and
Armark Food Services, Inc. are subject to dismissal on initial screening pursuant to 28 U.S.C.
§§1915(e)(2)(B)(ii) and §1915A(b)(1) for failure to state a claim. Because he recommends
that plaintiff’s claims against most defendants be dismissed, the magistrate judge suggests
that plaintiff’s motion for appointed counsel [Doc. #27] be denied.
The Report and Recommendation does not conclude the action with respect to all
claims and parties. Because plaintiff has not served defendant Byron Collins, Magistrate
Judge Jones has given him the opportunity to show cause why his claims against defendant
Collins should not be dismissed. While plaintiff responded to the show cause order, he did

not object to the magistrate judge’s Report and Recommendation. He thereby waived his
right to appellate review of the factual and legal issues it addressed. Casanova v. Ulibarri,
595 F.3d 1120, 1123 (10th Cir. 2010); see 28 U.S.C. §636(b)(1)(C).
Accordingly, the court ADOPTS Magistrate Judge Jones’s Report and
Recommendation and GRANTS the motions to dismiss filed by defendants Phillips and the
Oklahoma County Public Defender’s Office [Doc. # 30] and defendant Whetsel [Doc. # 36].
The claims against these defendants and against the Oklahoma Detention Center Staff
Personnel and Armark Food Service, Inc. are DISMISSED for failure to state a claim.1
Defendant Collins appears to be the principal defendant and it appears from plaintiff’s
response to the show cause order that plaintiff seeks legal counsel to assist him in obtaining
service on defendant Collins. The court therefore concludes the motion for appointed
counsel should be considered in conjunction with plaintiff’s response to the show cause order
and refers that motion back to the magistrate judge.2
IT IS SO ORDERED.
Dated this 21st day of July, 2016.

1

As the court concludes plaintiff has failed to state a claim under state law against any of
these defendants, it does not have to consider whether, as the magistrate judge recommends, it
should decline to exercise supplemental jurisdiction over any state law claims that are alleged.
2

The court is not, however, by the referral indicating how the motion should be resolved.

2