Staples v. United States Department of Justice et al

Filing 11

ORDER adopting Report and Recommendations re 10 Report and Recommendation. Case re-referred to Magistrate Erwin for further proceedings. Signed by Honorable Timothy D. DeGiusti on 9/21/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM STAPLES,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. CIV-16-711-D

ORDER
This matter is before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. § 636(b)(1)(B)-(C)
on August 23, 2016. Upon initial screening of the Complaint pursuant to 28 U.S.C. § 1915A
and § 1915(e)(2), Judge Erwin recommends that the case proceed only as a Bivens1 action
against Defendant Gonzales in his individual capacity, and only on a claim for damages
allegedly caused by a violation of the Eighth Amendment.
Plaintiff has not filed a timely objection nor requested additional time to object,
although he was expressly advised of the right to object, the deadline for objections, and the
consequences of failing to object. Thus, the Court finds that Plaintiff has waived further
review of the issues addressed in Judge Erwin’s Report. See Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991); see also United States v. 2121 East 30th Street, 73 F.3d 1057,
1060 (10th Cir. 1996).

1

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 10]
is ADOPTED. The action is DISMISSED WITHOUT PREJUDICE 2 as to all parties and
claims except a Bivens claim for damages against Defendant Gonzales. This case is rereferred to Judge Erwin for further proceedings consistent with the original case referral
[Doc. No. 5].
IT IS SO ORDERED this 21st day of September, 2016.

2

A dismissal based on the federal government’s sovereign immunity from suit is a dismissal for lack
of subject matter jurisdiction and must be without prejudice to refiling, even if refiling would be futile. See
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).

2