Burnett v. Oklahoma Department of Corrections

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION 26 , dismissing Plaintiff's Amended Complaint [docket no. 20], and counting this dismissal as a "prior occasion" or "strike" pursuant to 28 U.S.C. § 1915(g), denying plaintiff� 39;s request for court records search and appointment of counsel, and denying as moot 7 plaintiff's motion to strike, 17 motion to issue and serve summons, and 27 motion for issuance of summons (as more fully set out) (3) DENIES plaintiff s request for court records search and appointment of counsel and, further, DENIES plaintiffs Motion to Strike [docket no. 7], Motion to Issue and Serve Summons [docket no. 17], and Motion for Issuance of Summons [docket no. 27] as MOOT.. Signed by Honorable Vicki Miles-LaGrange on 5/22/2017. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
STEPHEN CRAIG BURNETT,
Plaintiff,
v.
JOE ALLBAUGH, Director, Oklahoma
Department of Corrections,
Defendant.

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Case No. CIV-16-1140-M

ORDER
On April 11, 2017, United States Magistrate Judge Bernard M. Jones issued a Report and
Recommendation in this action brought pursuant to 42 U.S.C. § 1983, alleging violations of
plaintiff’s federal constitutional rights. The Magistrate Judge recommended this action be
dismissed as frivolous and/or for failure to state a claim upon which relief may be granted. 1 The
Magistrate Judge also recommended that plaintiff’s request for a court records search and
appointment of counsel be denied 2 and that plaintiff’s Motion to Strike [docket no. 7] and Motion
to Issue and Serve Summons [docket no. 17] be denied as moot, in light of the Magistrate Judge’s
recommendation that this action be dismissed. Plaintiff was advised of his right to object to the
Report and Recommendation by May 2, 2017. On April 24, 2017, plaintiff filed his objection.
The Magistrate Judge recommended this matter be dismissed as plaintiff failed to show an
actual injury to pursue his claims. Plaintiff contends that his actual injury is his prior civil rights
complaints and the forms he submitted with his Amended Complaint regarding the grievance

1

The Magistrate Judge further recommended that this dismissal count as a “prior occasion”
or “strike” pursuant to 28 U.S.C. § 1915(g).
2

Plaintiff made these requests in his Amended Complaint.

process requiring him to exhaust his administrative remedies prior to filing a lawsuit. Having
reviewed plaintiff’s objection, and his Amended Complaint, the Court finds that plaintiff has not
alleged any actual injury, but only that the “grievance policy OP-090124 is overly complex,
confusing, contradictory and labyrinthine such that the ordinary prisoner cannot effectively utilize
it.” Plf. Obj. at 4. While plaintiff takes issue with the grievance process, the Court finds plaintiff
does not allege that exhaustion would be futile as there are no administrative remedies available.
See Ross v. Blake, 136 S.Ct. 1850, 1858 (2006) (“Under § 1997e(a) [of the Prison Litigation
Reform Act], the exhaustion requirement hinges on the availability of administrative remedies: An
inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”). As such,
the Court finds that plaintiff’s allegations in his Amended Complaint are mere “naked assertions
devoid of further factual enhancement,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and therefore,
should be dismissed.
Accordingly, upon de novo review, the Court:
(1)

ADOPTS the Report and Recommendation [docket no. 26] issued by the Magistrate
Judge on April 11, 2017;

(3)

DISMISSES Plaintiff’s Amended Complaint [docket no. 20]; and COUNTS this
dismissal as a “prior occasion” or “strike” pursuant to 28 U.S.C. § 1915(g); and

(2)

DENIES plaintiff’s request for court records search and appointment of counsel
and, further, DENIES plaintiff’s Motion to Strike [docket no. 7] and Motion to
Issue and Serve Summons [docket no. 17] as MOOT.

IT IS SO ORDERED this 22nd day of May, 2017.