Burnett v. Fallin et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION 9 (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 6/6/2017. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
STEPHEN C. BURNETT,
Plaintiff,
v.
MARY FALLIN, et al.,
Defendants.

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Case No. CIV-17-392-M

ORDER
On May 4, 2017, United States Magistrate Judge Gary M. Purcell 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 with prejudice, on the basis of defendants’ sovereign immunity and without prejudice
for failure to state a claim upon which relief may be granted. 1 Plaintiff was advised of his right to
file his objection to the Report and Recommendation on or before May 24, 2017. On May 22,
2017, plaintiff filed his objection.
Accordingly, upon de novo review, the Court:
(1)

ADOPTS the Report and Recommendation [docket no. 9] issued by the Magistrate
Judge on May 4, 2017;

(2)

DISMISSES plaintiff’s claims in this matter as follows: (1) plaintiff’s 42 U.S.C. §
1983 claims against defendants in their official capacities are dismissed with
prejudice on the ground of sovereign immunity; and (2) plaintiff’s claims against
defendants in their individual capacities, and plaintiff’s claim for prospective
equitable relief in their official capacities are dismissed without prejudice for failure
to state a claim upon which relief may be granted;

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The Magistrate Judge further recommended that this dismissal count as a “prior occasion”
or “strike” pursuant to 28 U.S.C. § 1915(g) and that the Court decline to exercise supplemental
jurisdiction over plaintiff’s state tort claim.

(3)

COUNTS this dismissal as a “prior occasion” or “strike” pursuant to 28 U.S.C. §
1915(g); and

(4)

DECLINES to exercise supplemental jurisdiction over plaintiff’s state tort claim.

IT IS SO ORDERED this 6th day of June, 2017.