Moore v. Thomas et al

Filing 66

ORDER ADOPTING 64 Report and Recommendation, GRANTING 43 Motion to Dismiss filed by Mars Gonzaga, GRANTING 45 Motion to Dismiss filed by Christine Thomas, GRANTING 57 Motion to Strike filed by Mars Gonzaga, DENYING 62 Joint Motion to Strike filed by Mars Gonzaga and Christine Thomas, DENYING 35 Motion to Amend filed by Thomas A Moore. These rulings dispose of all claims and, as recommended in the Report, this action is therefore DISMISSED without prejudice. Rule 12(b)(6), Fed. R. Civ. P. Signed by Honorable Stephen P. Friot on 10/4/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
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THOMAS A. MOORE,
Plaintiff,
-vsCHRISTINE THOMAS, et al.,
Defendants.

Case No. CIV-16-0397-F

ORDER
Plaintiff Thomas A. Moore, appearing pro se, brings this action under 42
U.S.C. § 1983.

Magistrate Judge Charles B. Goodwin issued a Report and

Recommendation (doc. no. 64, “the Report”), recommending that the court: grant
defendant Gonzaga’s motion to dismiss (doc. no. 43); grant defendant Thomas’s
motion to dismiss (doc. no. 45); and dismiss this action without prejudice. The
Report further recommends that the court grant defendant Gonzaga’s motion to
strike (doc. no. 57); deny defendant Gonzaga and defendant Thomas’s motion to
strike (doc. no. 62); and deny plaintiff’s motion to amend (doc. no. 35).
The Report advised the parties that failure to make timely objection to the
Report by September 14, 2017 waives the right to appellate review of both factual
and legal matters contained in the Report.
On September 14, 2017, the court received from the plaintiff a timely
objection to the Report. Doc. no. 65. Defendants did not object to the Report. All
objected to matters are reviewed de novo.

Following are some of the arguments made by plaintiff in his objection to the
Report. Plaintiff takes exception to statements in the Report which suggest that
plaintiff was using his inhaler so much because he was suffering from anxiety.
Plaintiff contends the generic inhaler was causing not only anxiety but also spasms
and making him use the inhaler. Plaintiff’s objection cites material in the special
report which was submitted by the defendants. The magistrate judge’s Report makes
clear, however, that it does not consider the special report at this stage because the
issue before the court is whether the complaint should be dismissed for failure to
state a claim. Plaintiff complains that the Report makes it seem that as long as
plaintiff was getting some type of treatment, defendants fulfilled their constitutional
obligations even though the treatment made plaintiff’s disease worse.

Plaintiff

argues that the fact that he had not had a seizure which caused him injury does not
excuse defendants’ alleged conduct. The objection also states plaintiff’s contentions
that the defendants were deliberately indifferent to his medical needs. The objection
asks the court to reject the Report and deny defendants’ motions to dismiss.
After review, the court finds that it agrees with the Report of the Magistrate
Judge and that no purpose would be served by stating any further analysis here
because the Report adequately addresses the basis of plaintiff’s objections.
Accordingly, plaintiff’s objection (doc. no. 65) to the Report and
Recommendation of Magistrate Judge Goodwin is DENIED, and the Report and
Recommendation (doc. no. 64) is ACCEPTED, ADOPTED and AFFIRMED. As
recommended in the Report, defendant Gonzaga’s motion to dismiss (doc. no. 43) is
GRANTED; defendant Thomas’s motion to dismiss (doc. no. 45) is GRANTED;
defendant Gonzaga’s motion to strike (doc. no. 57) is GRANTED; defendant
Gonzaga and defendant Thomas’s joint motion to strike (doc. no. 62) is DENIED;
and plaintiff’s motion to amend (doc. no. 35) is DENIED. These rulings dispose of

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all claims and, as recommended in the Report, this action is therefore DISMISSED
without prejudice. Rule 12(b)(6), Fed. R. Civ. P.
IT IS SO ORDERED this 4th day of October, 2017.

16-0397p005.docx

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