Wheeler v. Perry et al

Filing 17

ORDER ADOPTING 11 Report and Recommendation. Any claim against the Norman Police Department, & the claims against dft Forrest Perry for battery, intentional infliction of emotional distress & excessive force are DISMISSED WITH PREJUDICE on the bas is of res judicata. Plf's claims against the City of Norman are DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted. Plf has stated a valid claim against dft Forrest Perry, in both his individual capacity & his official capacity, for violation of plf's equal protection rights. Signed by Honorable Stephen P. Friot on 1/11/2017. (llg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

JIMMIE A. WHEELER,
Plaintiff,
-vsFORREST PERRY, et al.,
Defendants.

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Case No. CIV-16-893-F

ORDER
United States Magistrate Judge Shon T. Erwin issued a Report and
Recommendation on October 11, 2016 (doc. no. 11), recommending this court (1)
dismiss, with prejudice, any claim against the Norman Police Department and claims
against defendant Forrest Perry for battery, intentional infliction of emotional distress
and excessive force on the basis of res judicata; (2) dismiss, without prejudice,
plaintiff’s claims against the City of Norman for failure to state a claim, and (3)
conclude that plaintiff has stated a valid claim against defendant, Forrest Perry, in both
his individual capacity and his official capacity, for violation of plaintiff’s equal
protection rights. Plaintiff was advised of his right to object to the Report and
Recommendation by October 28, 2016 and that failure to make timely objection
waives the right to appellate review of both factual and legal questions therein
contained.
Upon motion, the court granted plaintiff two extensions of time to file an
objection to the Report and Recommendation. See, doc. nos. 13 and 15. Plaintiff’s
objection was ultimately due on December 28, 2016. In its order granting the final
extension of time, the court again advised plaintiff that failure to make a timely

objection to the Report and Recommendation waives the right to appellate review of
both factual and legal questions therein contained. See, doc. no. 15.
To date, plaintiff has not objected to the Report and Recommendation. With
no objection filed within the time prescribed, the court accepts, adopts and affirms the
Report and Recommendation in its entirety.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Shon T. Erwin on October 11, 2016 (doc. no. 11) is ACCEPTED,
ADOPTED and AFFIRMED.
Any claim against the Norman Police Department and the claims against
defendant, Forrest Perry, for battery, intentional infliction of emotional distress and
excessive force are DISMISSED WITH PREJUDICE on the basis of res judicata.
Plaintiff’s claims against the City of Norman are DISMISSED WITHOUT
PREJUDICE for failure to state a claim upon which relief may be granted.
Plaintiff has stated a valid claim against defendant, Forrest Perry, in both his
individual capacity and his official capacity, for violation of plaintiff’s equal
protection rights.
DATED January 11, 2017.

16-0893p003.wpd

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