Romero v. Rios et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION 8 of Magistrate Judge Shon T. Erwin...the conspiracy claim against all defendants and the failure to protect claims against defendants Rios, Clark and Doe are dismissed, with leave to amend; any amended complaint shall be filed within 30 days; this matter is re-referred to Judge Erwin for further proceedings, including resolution of plaintiff's motion to appoint counsel 9 . Signed by Honorable Joe Heaton on 11/4/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GUMERCINDO ROMERO JR.,
Plaintiff,
vs.
HECTOR RIOS, et al.,
Defendants.

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NO. CIV-16-0581-HE

ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brought this action
under 42 U.S.C. ' 1983 alleging violation of his Eighth Amendment rights. He asserts
claims of conspiracy and failure to protect from inmate violence, and seeks judgment for
monetary relief against defendants Warden Hector Rios, Sergeant Hill, Sergeant Clark, and
Sergeant John Doe, each in their official and individual capacities. This matter was referred
to U.S. Magistrate Judge Shon T. Erwin for initial proceedings consistent with 28 U.S.C. '
636(b)(1)(B), and Judge Erwin recommends dismissal of plaintiff=s claim of conspiracy and
his ' 1983 claims against defendants Rios, Clark, and John Doe. Plaintiff was previously
granted an extension of time until September 19, 2016, to object to the Report and
Recommendation, but no objection has been filed.
The court concurs in the substantial thrust of the Report. It correctly concludes the
complaint fails to state a claim against any defendant other than defendant Hill. However,
the deficiencies in the allegations as to the conspiracy claim and the deficiencies in the failure
to protect claim against the other defendants are potentially subject to correction by

amendment. Dismissal of those claims should therefore be without prejudice. The Report
[Doc. #8] is therefore ADOPTED as follows: the conspiracy claim against all defendants
and the failure to protect claims against defendants Rios, Clark and Doe are DISMISSED,
with leave to amend. Any amended complaint shall be filed within thirty (30) days. This
matter is re-referred to Judge Erwin for further proceedings, including resolution of
plaintiff=s motion to appoint counsel [Doc. #9].
IT IS SO ORDERED.
Dated this 4th day of November, 2016.

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