Carr v. Thomas et al

Filing 37

ORDER ADOPTING 34 Report and Recommendation; DENYING 19 Motion to Dismiss filed by Mars Gonzaga; DENYING 22 Motion to Dismiss filed by Christina Thomas; DENYING as MOOT 33 Motion to Strike filed by Christina Thomas; RE-REFERRING CASE to Magistrate Judge Suzanne Mitchell. Signed by Honorable Stephen P. Friot on 6/29/2017. (llg) (Main Document 37 replaced on 6/29/2017) (llg).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JAMES CARR,
Plaintiff,
-vsCHRISTINA THOMAS, Medical
Administrator, Lawton Correctional
Facility; MARS GONZAGA, M.D.,
Defendants.

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Case No. CIV-16-505-F

ORDER
On May10, 2017, United States Magistrate Judge Suzanne Mitchell issued a
Report and Recommendation, recommending that the motions to dismiss filed by
defendants, Christina Thomas and Mars Gonzaga, be denied.
Presently before the court are the timely objections of defendants, Christina
Thomas and Mars Gonzaga, M.D., to the Report and Recommendation.

In

accordance with 28 U.S.C. § 636(b)(1), the court has conducted a de novo review of
the matter. Initially, the court notes that defendants’ objections contain arguments
not raised before Magistrate Judge Mitchell. See, doc. no. 36, pp. 2-9; 10; doc. no.
35, pp. 2-3. The court declines to address arguments not raised before Magistrate
Judge Mitchell. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues
raised for the first time in objections to the magistrate’s recommendation are deemed
waived.”) Moreover, in determining whether a plaintiff has stated a claim, the court
may not look to the Martinez1 report to refute facts specifically pled by plaintiff.
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Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

Swobada v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993). With respect to defendant
Gonzaga’s qualified immunity defense, the court concurs with the analysis of
Magistrate Judge Mitchell and need not repeat that analysis here. The court accepts,
adopts and affirms the Report and Recommendation in its entirety.
The day before Magistrate Judge Mitchell issued the Report and
Recommendation defendant, Christina Thomas, filed a Motion to Strike Doc. No.
32. That document is entitled “Plaintiff’s Opposition to Defendants Motion to
Dismiss.” Defendant seeks to strike the document because plaintiff did not obtain
leave of court to file the supplemental brief as required by LCvR 7.1(i). As Judge
Mitchell did not consider this document in adjudicating defendants’ motions to
dismiss, see, doc. no. 34, p. 1, and the court has not considered the document in its
de novo review, the court finds that defendant’s motion should be denied as moot.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Suzanne Mitchell on May 10, 2017 (doc. no. 34) is ACCEPTED,
ADOPTED and AFFIRMED. The Motion to Dismiss of Defendant Mars Gonzaga,
M.D., filed December 2, 2016 (doc. no. 19) and Defendant Christina Thomas’
Motion to Dismiss, filed December 5, 2016 (doc. no. 22) are DENIED. Defendant
Christina Thomas’ Motion to Strike Doc. 32, filed May 9, 2017 (doc. no. 33), is
DENIED as MOOT. This matter is re-referred to United States Magistrate Judge
Suzanne Mitchell in accordance with 28 U.S.C. § 636 and the court’s prior order of
referral (doc. no. 3).
IT IS SO ORDERED this 29th day of June, 2017.

16-0505p001.docx

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