Wheeler v. Perry et al

Filing 22

ORDER ADOPTING 21 Report and Recommendation. Plf's 42 U.S.C. § 1983 equal protection claim against dft Forrest Perry, in both his individual capacity & his official capacity, is DISMISSED WITHOUT PREJUDICE. A final judgment shall issue forthwith. Signed by Honorable Stephen P. Friot on 3/22/2017. (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
On March 3, 2017, United States Magistrate Judge Shon T. Erwin issued a
Report and Recommendation, recommending that the remainder of plaintiff’s action
under 42 U.S.C. § 1983 be dismissed without prejudice for plaintiff’s failure to
comply with the court’s order of January 30, 2017.

Magistrate Judge Erwin

specifically found that plaintiff had failed to submit the necessary paperwork
required for service of process on defendant, Forrest Perry.
Any objection to Magistrate Judge Erwin’s Report and Recommendation was
due on March 20, 2017. To date, plaintiff has not objected to the Report and
Recommendation.

While the record does not reflect that the Report and

Recommendation has been returned undeliverable, it does reflect that the last two
orders sent to plaintiff by the court were returned undeliverable, with a notation that
plaintiff was released as of December 15, 2016. See, doc. nos. 18 and 20. Plaintiff
has not submitted a notice of change of address to the clerk of the court. Under Rule
5.4(a) of the court’s Local Civil Rules, “[p]apers sent by the court will be deemed
delivered if sent to the last known address given to the court.” The Report and
Recommendation was mailed to plaintiff’s last known address.

As the Report and Recommendation is deemed delivered to plaintiff and no
objection to the Report and Recommendation has been filed within the time
prescribed by Magistrate Judge Erwin, the court accepts, adopts and affirms the
Report and Recommendation in its entirety.
Accordingly, the Report and Recommendation of United States Magistrate
Judge Shon T. Erwin issued on March 3, 2017 (doc. no. 21) is ACCEPTED,
ADOPTED and AFFIRMED. Plaintiff’s 42 U.S.C. § 1983 equal protection claim
against defendant, Forrest Perry, in both his individual capacity and his official
capacity, is DISMISSED WITHOUT PREJUDICE. A final judgment shall issue
forthwith.
IT IS SO ORDERED this 22nd day of March, 2017.

16-893p004.docx

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