Silverman v. Prisoner Transportation Services of America LLC et al

Filing 48

ORDER ADOPTING 40 Report and Recommendation, DENYING IN PART and GRANTING IN PART 32 Motion to Dismiss filed by Lt Blythe, Brian Victory, Prisoner Transportation Services of America LLC, DISMISSING, w/o prejudice, plf's claim for compensatory damages, QUASHING service on dfts Blythe & Victory (plf will be given an opportunity to re-attempt service on those parties, RE-REFERRING CASE to Magistrate Judge Suzanne Mitchell. Signed by Honorable Stephen P. Friot on 6/15/16. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOSHUA ALLEN SILVERMAN,
Plaintiff,
-vsPRISONER TRANSPORTATION
SERVICES OF AMERICA, LLC (PTS),
et al.,
Defendants.

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Case No. CIV-15-1093-F

ORDER
Plaintiff, who appears pro se and whose pleadings are liberally construed,
initiated a civil rights complaint under 42 U.S.C. § 1983.
Magistrate Judge Suzanne Mitchell issued a Report and Recommendation on
April 26, 2016. Doc. no. 40. In the Report, the Magistrate Judge recommends: that
the court deny defendants’ motion to dismiss to the extent it seeks dismissal of the
entire complaint based on the statute of limitations and plaintiff’s failure to allege
more than a de minimis physical injury under the Prison Litigation Reform Act
(PLRA); that the court dismiss without prejudice plaintiff’s claim for compensatory
damages; that the court quash service on defendants Blythe and Victory; and that the
plaintiff be given an opportunity to re-attempt service on Blythe and Victory.
The Report advised the parties of the right to file an objection to the Report
with the clerk of this court by May 16, 2016. The Report further advised that failure
to make timely objection to the Report waives the right to appellate review of both
factual and legal issues contained in the Report. No party has filed an objection or

response to the Report, nor has any party sought an extension of time within which
to file an objection or response.
After review of the issues covered in the Report, with no objection having been
filed, and having concluded that no further analysis is necessary, the Report and
Recommendation of Magistrate Judge Mitchell is ACCEPTED, ADOPTED and
AFFIRMED. As recommended, the motion to dismiss is DENIED IN PART and
GRANTED IN PART, as follows. Defendants’ motion to dismiss is DENIED to the
extent that it seeks dismissal of the entire complaint based on the statute of limitations
and plaintiff’s failure to allege more than a de minimis physical injury under the
PLRA. The motion is GRANTED to the extent that the court DISMISSES, without
prejudice, plaintiff’s claim for compensatory damages. Service on defendants Blythe
and Victory is QUASHED, and plaintiff will be given an opportunity to re-attempt
service on those parties.1 This matter is RE-REFERRED to the Magistrate Judge for
all proceedings consistent with the original referral.
DATED this 15th day of June, 2016.

15-1093p006.wpd

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The Report notes that if the court adopts the recommendation and re-refers the case, the
Magistrate Judge anticipates ordering defense counsel to provide the court with home addresses for
defendants Blythe and Victory, under seal, so that the U.S. Marshals Service can re-attempt service
for the plaintiff.

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