Alexander v. Whetsel et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATION 50 of Magistrate Judge Bernard M. Jones and dismisses plaintiff's claims against defendant Collins without prejudice. Signed by Honorable Joe Heaton on 10/17/2016. (cla)

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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. ) ) ) ) ) ) ) ) ) NO. CIV-15-0484-HE ORDER Plaintiff Nathan Dean Alexander, appearing pro se and in forma pauperis, filed this action asserting claims under §1983 against multiple defendants. 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. The court previously adopted his recommendations that plaintiff’s claims against all defendants, except for defendant Bryan Collins who had not been served with process, be dismissed for failure to state a claim upon which relief may be granted. The magistrate judge now recommends that the court dismiss plaintiff’s claims against defendant Collins without prejudice for failure to effect service within the 120 days then allowed under Fed.R.Civ.P. 4. Plaintiff 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.1 1 The court notes that, in considering whether a second permissive extension of time to effect service should be granted, the magistrate judge concluded that plaintiff’s action against Mr. Collins would not be barred if it were refiled. Report and Recommendation, Doc. #50, p. 3. 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 dismisses plaintiff’s claims against defendant Collins without prejudice. IT IS SO ORDERED. Dated this 17th day of October, 2016. 2

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