Roland v. Oklahoma Correctional Industries et al

Filing 31

ORDER adopting in part 28 Report and Recommendations. The Court further orders that Plaintiffs action against Defendants Oklahoma Correctional Industries and Department of Corrections is DISMISSED WITHOUT PREJUDICE.ORDER granting 29 Motion to Appoint Counsel. The Court will request the assistance of the Federal Bar Association in locating volunteer counsel to represent Plaintiff. Signed by Honorable Timothy D. DeGiusti on 1/5/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN ROLAND,
Plaintiff,
v.
OKLAHOMA CORRECTIONAL
INDUSTRIES, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. CIV-16-179-D

ORDER
This matter is before the Court for review of the Supplemental Report and
Recommendation [Doc. No. 28] issued by United States Magistrate Judge Gary M. Purcell,
recommending that the referral pursuant to 28 U.S.C. § 636(b)(1)(B) be vacated and the
action set for trial. This recommendation is based on findings that Plaintiff timely served
only Defendant Christopher Thompson and Defendant Thompson answered the Complaint
but failed to file a dispositive motion within the deadline set by Judge Purcell.
No party has filed a timely written objection, but Plaintiff has instead filed a motion
requesting the appointment of counsel to represent him for the anticipated trial. See Mot.
Appointment Counsel [Doc. No. 29]. Accordingly, the Court finds that further review of all
issues addressed by the Supplemental Report is waived by the parties who received notice.1
See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); Moore v. United

1

The unserved defendants have not appeared and likely did not receive notice of the action or the
Supplemental Report. Therefore, they have not waived further review of the issues.

States, 950 F.2d 656, 659 (10th Cir. 1991). Upon consideration of Judge Purcell’s Report,
the Court finds that the referral should be terminated but that the case should not proceed
against the unserved defendants and a trial setting would be premature.
On October 31, 2016, Judge Purcell issued an order directing Plaintiff to show cause
why two defendants who had not been served with process should not be dismissed without
prejudice for lack of service. Plaintiff has made no response.2 Pursuant to Fed. R. Civ.
P. 4(m), Plaintiff was required to complete service within 90 days, and pursuant to the Order
Requiring Service and Special Report, the 90-day period ran from July 8, 2016, until
October 6, 2016. No basis to extend the time period for service is apparent from the record.3
Therefore, Rule 4(m) requires a dismissal without prejudice of the unserved defendants,
Oklahoma Correctional Industries and the Department of Corrections.
Regarding the action against Defendant Thompson, Plaintiff appears pro se and in
forma pauperis to seek damages under 42 U.S.C. § 1983 based on alleged unconstitutional
conditions of confinement at the Joseph Harp Correctional Center (JHCC) in Lexington,
Oklahoma. Specifically, Plaintiff claims that on June 17, 2014, Defendant Thompson was
supervising Plaintiff’s work for Oklahoma Correctional Industries at an inmate call center

2

In Plaintiff’s Motion for Appointment of Counsel, he asserts only that he is unable to conduct a
jury trial of his action against Defendant Thompson without the assistance of an attorney.
3

Judge Purcell expressly instructed Plaintiff regarding his obligation to complete the necessary
service papers, which were provided by the Clerk of Court. Plaintiff promptly requested issuance of a
summons only for Defendant Thompson. The summons was issued and provided to the United States
Marshals Service for service. A timely return was filed showing personal service of Defendant Thompson
on August 29, 2106.

2

located at JHCC when he shot Plaintiff in the arm with a blowgun that he used “to
torment/harass inmates for no just cause, simply because he was in a power position given
to him by the Department of Corrections.” See Compl. [Doc. No. 1], p.3.
After screening the Complaint, Judge Purcell directed service of process, and
Defendant Thompson timely answered, denying most of Plaintiff’s allegations and asserting
affirmative defenses. Judge Purcell subsequently set a deadline of November 30, 2016, for
filing dispositive motions. No party made any further filing before Judge Purcell issued the
Supplemental Report and Recommendation. Under these circumstances, the Court finds that
the case against Defendant Thompson should proceed to trial. However, orderly trial
preparation requires a case management order setting deadlines for the parties to disclose
witnesses and exhibits, to complete discovery, and to make trial submissions. Therefore, the
Court finds that it would be premature to issue a trial setting at this time and, instead, the case
should be set for a scheduling conference.
Turning to Plaintiff’s Motion for Appointment of Counsel [Doc. No. 29], the Court
has discretion to request an attorney to represent a civil litigant who is proceeding in forma
pauperis. See 28 U.S.C. § 1915(e)(1); see also Johnson v. Johnson, 466 F.3d 1213, 1217
(10th Cir. 2006). Upon consideration, the Court finds that Plaintiff lacks sufficient skill and
ability to try his case against Defendant Thompson and that legal representation for Plaintiff
would facilitate further pretrial proceedings and a jury trial. See Rucks v. Boergermann, 57
F.3d 978, 979 (10th Cir. 1995). Accordingly, the Court finds that Plaintiff’s Motion should

3

be granted to the extent that an attorney should be requested for Plaintiff through the
volunteer program coordinated in this district by the Federal Bar Association.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 28]
is ADOPTED in part, as set forth herein. The Court orders the termination of the referral to
Judge Purcell pursuant to 28 U.S.C. § 636(b)(1)(B). The Court further orders that Plaintiff’s
action against Defendants Oklahoma Correctional Industries and Department of Corrections
is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m). The case against
Defendant Christopher Thompson will be set on a scheduling conference docket.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel
[Doc. No. 29] is GRANTED, as set forth herein. The Court will request the assistance of the
Federal Bar Association in locating volunteer counsel to represent Plaintiff.
IT IS SO ORDERED this 5th day of January, 2017.

4