Quallate v. Oklahoma Department of Corrections et al

Filing 7

ORDER denying 5 Motion to Stay Case; denying 5 Motion for Order; adopting Report and Recommendations re 6 Report and Recommendation. Case Remanded to Oklahoma County District Court. Signed by Honorable Timothy D. DeGiusti on 111/9/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LEONARD QUALLATE,

)
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Plaintiff,
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v.
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OKLAHOMA DEPARTMENT OF
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CORRECTIONS,
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TRACY McCOLLUM, Warden NFCC, )
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Defendants.
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Case No. CIV-17-844-D

ORDER
Plaintiff, a pro se litigant incarcerated at the North Fork Correctional Center in
Sayre, Oklahoma, filed this action in Oklahoma County District Court on March 24, 2017,
alleging he had suffered “a taking without just compensation.” [Doc. No. 1-1] at 2. He
also alleged a due process violation under the Fourth, Fifth and Fourteenth Amendments
of the U.S. Constitution. Id. at 1-4. Because Plaintiff invoked the federal Constitution,
Defendant filed a Notice of Removal [Doc. No. 1]. Pursuant to 28 U.S.C. § 636(b)(1)(B),
the matter was referred to United States Magistrate Judge Suzanne Mitchell for initial
proceedings.
On September 26, 2017, Judge Mitchell filed a Report and Recommendation
(“Report”) [Doc. No. 6], in which she recommended that the Court dismiss Plaintiff’s
Fourth, Fifth and Fourteenth Amendment due process claims without prejudice because
they fail to state a claim upon which relief can be granted.

Judge Mitchell also

recommended that Plaintiff’s state law claims be remanded to state court.

Judge Mitchell advised Plaintiff of his right to object and directed that any objection
be filed on or before October 16, 2017. Judge Mitchell further advised Plaintiff that any
failure to object would result in a waiver of the right to appellate review. The deadline for
filing objections has passed. To date, Plaintiff has not filed objections and has not sought
an extension of time in which to do so.
Accordingly, Judge Mitchell’s Report and Recommendation [Doc. No. 6] is
ADOPTED as though fully set forth herein. Plaintiff’s Fourth, Fifth and Fourteenth
Amendment due process claims are dismissed without prejudice to refiling. Plaintiff’s
state law claims are remanded to the District Court of Oklahoma County, Oklahoma. This
Order moots Plaintiff’s Application to Stay Proceedings and Request for Order Requiring
Special Report and Brief in Support [Doc. No. 5]; therefore, that motion is DENIED.
IT IS SO ORDERED this 9th day of November 2017.

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