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).

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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. ) ) ) ) ) ) ) ) ) ) ) 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. 1 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 2

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