Toles v. Oklahoma Department of Corrections

Filing 8

ORDER accepting and adopting 4 Report and Recommendation as though fully set forth herein. Plaintiff's motion to amend, Motion to Appoint Counsel Doc. 6 , Motion for Leave to Proceed In Forma Pauperis Doc. 7 , and any other nondispositive matter, are re-referred to Judge Erwin for further proceedings consistentwith the original order of referral Doc 2 . Signed by Honorable Timothy D. DeGiusti on 5/10/17. (ml)

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-D

ORDER
Plaintiff, a state prisoner appearing pro se, brings the present action against
the Oklahoma Department of Corrections (“ODOC”) and several employees at the
Northeastern Oklahoma Correctional Center,1 alleging various constitutional
violations related to his incarceration. The matter was referred to United States
Magistrate Judge Shon T. Erwin for initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B)-(C) and Rule 72(b), Federal Rules of Civil Procedure. On March 28,
2017, Judge Erwin issued his Report and Recommendation (“R&R” or “Report”)
[Doc. No. 4] in which he recommended that the Court: (1) dismiss, without
prejudice, Plaintiff’s claims against ODOC and the official capacity claims against
Defendants Crockett, Bagby, Kays, Somers and Redman; (2) dismiss, with

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The individual employees are Beth Crockett, Case Manager; Christine Bagby, Case
Manager; Connie Kays, Unit Manager; John Somers, Deputy Warden; and Rodney
Redman, Warden.

prejudice, the individual capacity claims against Defendants Crockett and Bagby in
Count One and the individual capacity claims against Defendants Crockett, Bagby,
and Kays in Count Two alleging harassment, (3) dismiss, without prejudice, the
individual capacity claims against Defendants Crockett, Bagby and Kays in Count
Two alleging retaliation, and (4) conclude that Plaintiff has stated a valid Due
Process claim based on the allegations in Count Three against Defendants Crockett,
Bagby, Kays, Somers, and Redman in their individual capacities. See R&R at 18.
The Court construes Plaintiff’s objection as a motion to amend in that Plaintiff
does not necessarily object to the R&R, but rather seeks leave to amend his
Complaint to address the issues raised in the Report. See Pl.’s Partial Obj. to the
Magistrate’s Report and Recommendation at 3 [Doc. No. 5] (“Plaintiff now brings
his timely partial Objection, to the effect that he will ask of the Court to allow him
leave to AMEND his Complaint …. That while preparing and drafting a 1983
Complaint before this Federal Forum, [Plaintiff] will also attempt to shed some
clarity on his Constitutional provisions he believes applies to his substantive claims
as presented therein.”) (emphasis in original).2
As Plaintiff has no substantive objection to the R&R, the Court finds the
recommended disposition of his action should be accepted. See Fed. R. Civ. P.

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Because Plaintiff is proceeding pro se, the Court construes his filings liberally, but
will not act as his advocate in constructing his arguments and searching the record.
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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72(b)(3)(“The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.”). Accordingly, the Report
and Recommendation [Doc. No. 4] is ACCEPTED and ADOPTED as though fully
set forth herein. Plaintiff’s motion to amend, Motion to Appoint Counsel [Doc. No.
6], Motion for Leave to Proceed In Forma Pauperis [Doc. No. 7], and any other nondispositive matter, are re-referred to Judge Erwin for further proceedings consistent
with the original order of referral [Doc. No. 2].
IT IS SO ORDERED this 10th day of May 2017.

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