Porter v. Scarantino

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 17 to the extent the Court agrees that 9 Porter's Motion for Expedited Hearing is denied; finds that this matter is hereby re-referred to Magistrate Jones for further proceedings. Signed by Honorable Lee R. West on 6/15/16. (kb)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA

TYRONE L PORTER,
Petitioner,
No. CIV-15-982-W

vs.

UNITED STATES OF AMERICA, by
and through THOMAS SCARANTINO,
Warden of El Reno FCI,

Respondent.
ORDER

On May 23, 2016, United States Magistrate Judge Bernard M. Jones issued a
Report and Recommendation in this matter and recommended inter alia that the Motion

to Dismiss filed by respondent Thomas Scarantino, Warden, be granted and this action be
dismissed without prejudice because petitioner Tyrone L. Porter had failed to exhaust his
administrative remedies. Porter, who is represented by counsel, was advised of his right
to object, s^ Doc. 17 at 5, and on June 13, 2016, he filed a document entitled "Response
to Respondent's Motion to Dismiss and Magistrate Judge's Report and Recommendation."
See Doc. 18.

Upon de novo review of the record, including examination of the exhibit attached to
Porter's submission that shows that exhaustion may have occurred after Porter had filed
his Petition for Writ of Habeas Corpus ("Petition"), see Doc. 1, and Scarantino had filed his
Motion to Dismiss, see Doc. 18-1, the Court

(1) ADOPTS the Report and Recommendation [Doc. 17] filed on May 23, 2016, to
the extent the Court agrees that Porter's Motion for Expedited Hearing [Doc. 9] filed on
September 23, 2015, should be and is hereby DENIED; and

(2) FINDS that this matter should be and is hereby RE-REFERRED to Magistrate
Jones forfurther proceedings so that he may consider interalia (a) Scarantino's argument
as set forth in Proposition II in his Motion to Dismiss, sm Doc. 16 at 4-6, that Porter failed

to state a claim upon which relief may be granted in his Petition, (b) the consequences, if
any, of Porter's failure to timely respond to the arguments and authorities in Proposition II
and (c) the consequences, if any, of Porter's failure to exhaust his administrative remedies
before the instant Petition was filed.

ENTERED this

day of June, 2016.

LE^. WEST
UNITED STATES DISTRICT JUDGE