Gray v. GEO Group Inc Lawton Correctional Facility et al

Filing 141

ORDER ADOPTING REPORT AND RECOMMENDATION. The Report 129 is Accepted, Adopted and Affirmed. As recommended in the Report, defendant Juarez is DISMISSED without prejudice. Motions terminated. Signed by Honorable Stephen P. Friot on 9/19/2019. (ac)

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

FREDERICK RIDEOUT GRAY, JR.,
Plaintiff,
-vsGEO GROUP INC., et al.,
Defendants.

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Case No. CIV-17-0137-F

ORDER
Plaintiff Gray, a state prisoner appearing pro se and in forma pauperis, brings
this action pursuant to 42 U.S.C. § 1983, alleging violations at the Lawton
Correctional Facility. On April 15, 2019, Magistrate Judge Bernard M. Jones
submitted a Report and Recommendation which recommended that the court dismiss
defendant Juarez from this action, without prejudice, under Rule 4(m), Fed. R. Civ.
P. Doc. no. 129. The Report stated that Mr. Gray had failed to effect timely service
on Juarez. The Report stated that Mr. Gray had not shown good cause for a
mandatory extension of time within which to serve Juarez and that the court should
decline a permissive extension of time. Id., p. 4 of 5.
The Report advised that any objection to the recommended rulings must be
filed by May 6, 2019. No objection was filed. The undersigned took no action on
the Report at that time because, on May 16, 2019, Mr. Gray moved to temporarily
stay this action, citing his ongoing mental health treatment. Doc. no. 135. The
magistrate judge granted the motion and stayed proceedings for ninety days (or until
August 26, 2019). Doc. no. 137. On September 17, 2019, the magistrate judge

entered an order lifting the stay. Doc. no. 140. The order noted that at the time the
stay was entered, the only unexpired deadline was a deadline involving the filing of
Mr. Gray’s proposed second amended complaint.1
As the stay has been lifted, the court now addresses the Report of April 15,
2019. As already stated, the time to object to the Report expired before the stay was
put in place, and no objection to the Report has been filed. Nor has Mr. Gray
requested an extension of time within which to object to the Report.
With there being no objection to the Report, and having reviewed the matters
covered in the Report, the court concurs in the recommended rulings. Given the
detailed analysis set out in the Report there is no need for further discussion of the
issues here. The Report (doc. no. 129) is ACCEPTED, ADOPTED and
AFFIRMED. As recommended in the Report, defendant Juarez is DISMISSED
without prejudice.
IT IS SO ORDERED this 19th day of September, 2019.

17-0137p010.docx

1

The possibility that a second amended complaint may be permitted has no direct impact on the
issue covered in the April 15, 2019 Report. Without prejudging any issues, the court notes that the
filing of a second amended complaint does not restart the 120-day service period for a defendant
who was named in a prior version of the complaint. See, Bolden v. City of Topeka, Kansas, 441
F.3d 1129, 1148 (10th Cir. 2006) (“the 120-day period provided by Rule 4(m) is not restarted by
the filing of an amended complaint except as to those defendants newly added in the amended
complaint.”). Moreover, it does not appear that Mr. Gray intends to include Juarez in a second
amended complaint. See, doc. no. 130, pp. 6-7 (previously proposed version of a second amended
complaint).

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