Cyr v. Oklahoma County Sheriff Office et al

Filing 9

ORDER adopting 5 Report and Recommendation as though fully set forth herein.. Signed by Honorable Timothy D. DeGiusti on 5/12/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOSEPH R. CYR,
Plaintiff,
v.
OKLAHOMA COUNTY
SHERIFF OFFICE; BOARD
OF COUNTY COMMISSIONERS,
Defendants.

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Case No. CIV-17-422-D

ORDER
Plaintiff, a state prisoner appearing pro se, brings the present action against
the Oklahoma County Sheriff’s Office and the Board of County Commissioners,
seeking damages for injuries he suffered after being attacked in the Oklahoma
County Jail.1 The matter was referred to United States Magistrate Judge Suzanne
Mitchell for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B)-(C) and
Rule 72(b) of the Federal Rules of Civil Procedure. On April 18, 2017, Judge
Mitchell issued a Report and Recommendation (“R&R” or “Report”) in which she
recommended that the Court dismiss Plaintiff’s action for lack of subject matter
jurisdiction. See R&R at 4-5.

1

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).

Plaintiff does not object to the R&R. Instead, he seeks leave to amend his
Complaint to address the issues raised in the Report [Doc. No. 7]. As Plaintiff has
no substantive objection to the R&R, the Court finds that the recommended
disposition of his action should be accepted. See Fed. R. Civ. P. 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. 5] is ACCEPTED and ADOPTED as though fully set forth herein. Plaintiff’s
Motion to Amend is re-referred to Judge Mitchell for further proceedings consistent
with the original order of referral [Doc. No. 4].2
IT IS SO ORDERED this 12th day of May 2017.

2

“[N]othing prevents a district court from granting a party leave to amend its
complaint to assert a new basis for subject matter jurisdiction, provided that the
amendment is not unduly delayed, advanced in bad faith, or prejudicial to the
opposing party[.]” Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 887
(3d Cir. 1992); see also Agostino Ferrari, S.p.A. v. Antonacci, 858 F.Supp. 478, 480
(E.D. Pa. 1994) (“[A] party may amend its pleading to state a different jurisdictional
basis, and a trial court has jurisdiction to rule on the request for leave to amend.”)
(citing Berkshire).