Smith v. Drawbridge et al

Filing 89

ORDER denying plaintiff's 88 objection and/or motion...see order for specifics. Signed by Honorable Joe Heaton on 11/16/2018. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FRED SMITH,

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Plaintiff,
vs.
JAMES DRAWBRIDGE, et al.,
Defendants.

NO. CIV-16-1135-HE

ORDER
This case involves claims asserted by plaintiff Smith, a state prisoner appearing pro
se, asserting various violations of federal law.

After adopting reports from a U.S.

Magistrate Judge, the court dismissed certain claims and granted summary judgment as to
the remaining ones. [Doc. Nos. 49 & 78]. The court entered judgment in favor of
defendants on June 13, 2018. [Doc. Nos. 78 & 79]. Plaintiff appealed from the judgment.
[Doc. #80].
Plaintiff has now filed what he terms an objection to the report, presumably referring
to the second report [Doc. #76] adopted by the court. The objection raises various further
arguments going to the merits of his claims.
The pertinent report of the magistrate judge has already been adopted, and this new
objection to it is not timely. Further, as plaintiff’s new arguments appear to go to the merits
of the previous decision, the pendency of the appeal deprives this court of authority to
address his further arguments. See Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 58-61 (1982) (“[t]he filing of a notice of appeal is an event of jurisdictional

significance—it confers jurisdiction on the court of appeals and divests the district court of
its control over those aspects of the case involved in the appeal”). In addition, even viewing
defendant’s objection as a Rule 60(b) motion, no persuasive basis for relief under that rule
is stated. See Fed.R.Civ.P. 62.1; see also Aldrich Enters., Inc. v. United States, 938 F.2d
1134, 1143 (10th Cir. 1991).
Plaintiff’s objection and/or motion [Doc. #88] is DENIED.
IT IS SO ORDERED.
Dated this 16th day of November, 2018.

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