Atwood v. United States of America et al

Filing 97

ORDER ADOPTING REPORT AND RECOMMENDATION 96 , granting 92 Plaintiff's Motion to Dismiss Complaint dismissing with prejudice this action, and deeming moot 89 Defendant United States' Motion for Summary Judgment. Signed by Honorable Patrick R Wyrick on 9/23/2019. (ks)

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

DAVID GARLAND ATWOOD, II,
Plaintiff,
v.
UNITED STATES OF AMERICA,
DOCTOR SPENCER ZEAVIN,
PHYSICIAN ASSISTANT AARON
RUSSELL, DOCTOR DAVID HUNTER,
and DOCTOR KEITH CLARK,
Defendants.

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Case No. CIV-17-00629-PRW

ORDER ADOPTING REPORT AND RECOMMENDATION
On August 22, 2019, United States Magistrate Judge Suzanne Mitchell issued a
Report and Recommendation (Dkt. 96) in this matter recommending that the Court:
(1) grant Plaintiff’s Motion to Dismiss Complaint (Dkt. 92);
(2) dismiss this action with prejudice to refiling and close the case; and
(3) deem Defendant United States’ Motion for Summary Judgment (Dkt. 89)
(SEALED) moot.
The parties were advised of their right to file an objection to the Report and
Recommendation (Dkt. 96) on or before September 12, 2019, 1 but no objections have been
filed. Thus, the parties have waived further review of the issues addressed in the Report

1

R. & R. (Dkt. 96) at 5.
1

and Recommendation (Dkt. 96). 2 Under 28 U.S.C. § 636(b)(1), a district judge has [pwer
to “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge” and “also [to] receive further evidence or recommit the matter to
the magistrate judge with instructions.”
Upon de novo review, the Court:
(1)

ADOPTS the Report and Recommendation (Dkt. 96) issued by the
Magistrate Judge on May 30, 2019;

(2)

GRANTS the Plaintiff’s Motion to Dismiss Complaint (Dkt. 92) and
accordingly DISMISSES WITH PREJUDICE the entire action; and

(3)

deems Defendant United States’ Motion for Summary Judgment (Dkt. 89)
(SEALED) MOOT.

IT IS SO ORDERED this 23rd day of September, 2019.

2

Olivera v. Cate, No. 5:14-cv-00162-D, 2016 WL 1436694, at *1 (W.D. Okla. Apr. 11,
2016) (citing Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); United States v.
2121 E. 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996)).
2