De La Cruz v. Graber et al

Filing 111

ORDER ADOPTING 110 Report and Recommendation, GRANTING 85 Motion to Dismiss or, in the Alternative, for Summary Judgment filed by Dr. Kenneth Watson, as follows: Plf's claims against dft Watson based on the ADA are DISMISSED w/o prejudice , for failure to state a claim upon which relief may be granted. Dft Watson is GRANTED summary jdgt on plf's claim alleged under the Eighth Amendment, based on plf's failure to exhaust administrative remedies within the required period. This action remains referred to the magistrate judge. Signed by Honorable Stephen P. Friot on 8/29/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ARMANDO GARCIA DE LA CRUZ, )
)
)
Plaintiff,
)
)
-vs)
)
JOHN DOE WARDEN, FTC, et al.,
)
)
Defendants.

Case No. CIV-16-0181-F

ORDER
Plaintiff Armando Garcia De La Cruz, a federal prisoner appearing pro se and
in forma pauperis, filed this action pursuant to the Americans With Disabilities Act
and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971), alleging violations of his constitutional rights. In Magistrate Judge
Shon T. Erwin’s Report and Recommendation of July 26, 2017 (the Report, doc. no.
110), the magistrate judge recommends that defendant Dr. Kenneth Watson’s motion
to dismiss or in the alternative for summary judgment (doc. no. 85) be granted, as
follows. The Report recommends that plaintiff’s claims against Dr. Watson based
on the Americans With Disabilities Act be dismissed for failure to state a claim upon
which relief may be granted. The Report does not state whether this dismissal should
be with or without prejudice, but the court finds that it should be without prejudice.
In addition, the Report recommends that Dr. Watson be granted summary judgment
on plaintiff’s claim alleged under the Eighth Amendment, given plaintiff’s failure to
exhaust remedies. Summary judgment is appropriate on that claim because the
record makes clear that the time for exhaustion has expired.

Plaintiff has not objected or otherwise responded to the Report. Nor has
plaintiff requested additional time within which to do so.
Upon review, the court finds that it agrees with the recommendations in the
Report and that no purpose would be served by additional discussion here.
Accordingly, with no objection having been filed to the Report, the Report
and Recommendation of the magistrate judge is ACCEPTED, ADOPTED and
AFFIRMED.

Defendant Dr. Kenneth Watson’s motion to dismiss or in the

alternative for summary judgment (doc. no. 85) is GRANTED as follows.
Plaintiff’s claims against defendant Watson based on the Americans With
Disabilities Act are DISMISSED without prejudice, for failure to state a claim upon
which relief may be granted. Defendant Watson is GRANTED summary judgment
on plaintiff’s claim alleged under the Eighth Amendment, based on plaintiff’s failure
to exhaust administrative remedies within the required period.
This order does not dispose of all issues. Accordingly, this action remains
referred to the magistrate judge.
IT IS SO ORDERED this 29th day of August, 2017.

16-0181p002.docx

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