Toles v. Oklahoma Department of Corrections

Filing 44

ORDER denying 24 Motion for Order; adopting Report and Recommendations re 25 Report and Recommendation.; adopting Report and Recommendations re 39 Report and Recommendation.. Signed by Honorable Scott L. Palk on 2/20/2018. (md)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TERRANCE TOLES,
Plaintiff,
v.
OKLAHOMA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Case No. CIV-17-150-SLP

ORDER
Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42 U.S.C.
§ 1983 alleging violations of his federal constitutional rights. The matter was referred to
United States Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. § 636(b)(1)(B)-(C)
and Rule 72(b) of the Federal Rules of Civil Procedure.
On July 27, 2017, Judge Erwin issued a Report and Recommendation [Doc. No. 25]
in which he recommended, pursuant to the Court’s screening authority under 28 U.S.C.
§ 1915A(a)-(b), dismissal of several defendants and/or claims raised in the Amended
Complaint [Doc. No. 23].

Plaintiff did not file an objection to the Report and

Recommendation. Plaintiff did, however, file additional pleadings which were stricken in
part, and construed, in part, as a supplement to the Amended Complaint. See Order [Doc.
No. 35].
On November 27, 2017, Judge Erwin issued a separate Report and Recommendation
[Doc. No. 39] in which he recommended, pursuant to the Court’s screening authority under
§ 1915A(a)-(b), dismissal of additional defendants and/or claims raised in the Supplement

to the Amended Complaint. Judge Erwin further recommended denial of Plaintiff’s Motion
for Conditional Release Community Placement Federal CWC or Halfway House [Doc. No.
24], which he construed as a request for preliminary injunctive relief.
On December 26, 2017, Plaintiff filed a Motion [Doc. No. 42] and requested an
extension of time to object to the R&R filed on November 27, 2017. Plaintiff advised the
Court that he was currently incarcerated at James Crabtree Correctional Center in Helena,
Oklahoma. He stated that the R&R had been mailed to his former place of incarceration,
the Oklahoma State Penitentiary in McAlester, Oklahoma, and that he did not receive it
until December 19, 2017. The Court granted Plaintiff’s request, see Order [Doc. No. 43],
and gave him until January 26, 2018 to file his objection.
In each of the R&Rs, Judge Erwin advised Plaintiff of his right to object to the
findings set forth therein and further advised Plaintiff that failure to timely object would
constitute a waiver of his right to appellate review of the factual and legal matters in the
R&Rs. To date, Plaintiff has not filed an objection to either of the R&Rs, nor has Plaintiff
requested any further extensions of the deadlines. Therefore, the Court finds Plaintiff has
waived further review of the issues addressed in each of the R&Rs.1
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.
25] is ADOPTED in its entirety.

1

Plaintiff is responsible for providing notice of any change of address to the Court. See
LCvR 5.4(a) (requiring written notice of a change of address and further providing that
papers sent by the Court are “deemed delivered if sent to the last known address given to
the Court.”); see also Theede v. United States Dep’t of Labor, 172 F.3d 1262, 1267-68
(10th Cir. 1999) (pro se plaintiff who failed to provide any change of address waived right
to review of report and recommendation by failing to make a timely objection).
2

IT IS FURTHER ORDERED that the Report and Recommendation [Doc. No. 39]
is ADOPTED in its entirety.
IT IS FURTHER ORDERED that this matter is re-referred to Judge Erwin for
further proceedings consistent with the initial case referral.2
IT IS SO ORDERED this 20th day of February, 2018.

2

As set forth in the November 27, 2017 R&R, the following claims remain pending in this
action: “(1) an individual-capacity monetary damages claim for retaliation against
Defendant Crockett, which alleges three distinct forms of retaliation; and (2) individualcapacity claims for monetary damages against Defendants Crockett and Kays for
intentional denial of Mr. Toles into a court-ordered drug treatment program in violation of
Due Process.” Id. at 24.
3