Rodriguez v. Great Plains Correctional Facility et al

Filing 65

ORDER denying 38 Motion to Dismiss; denying 56 Motion to Appoint Counsel ; denying 58 Motion to Dismiss; adopting Report and Recommendations re 60 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 8/26/2019. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANTONIO TRUJILLO RODRIGUEZ,
Plaintiff,
v.
GREAT PLAINS CORRECTIONAL
FACILITY, et al.,
Defendants.

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Case No. CIV-17-1276-D

ORDER
This matter is before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Bernard M. Jones pursuant to 28 U.S.C. § 636(b)(1)(B)
and (C) on May 28, 2019. Judge Jones recommends upon initial screening of the Second
Amended Complaint that Plaintiff’s action should be dismissed for lack of subject matter
jurisdiction and that all pending motions should be denied as moot.
Plaintiff, a federal inmate appearing pro se and in forma pauperis, has made no
timely objection nor requested additional time to object.1 Therefore, the Court finds that
Plaintiff has waived further review of all issues addressed in Judge Jones’ Report. See
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also United States v. 2121
E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).

1

On July 12, 2019, acting sua sponte, the Court granted a 30-day extension of time for
Plaintiff to object, and directed the Clerk to mail a second copy of the Report to Plaintiff using a
new address provided by his Notice of Change of Address filed June 4, 2019.

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 60] is ADOPTED in its entirety.

This action is DISMISSED for lack of subject

matter jurisdiction. A separate judgment of dismissal without prejudice shall be entered.2
IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss [Doc. Nos. 38
and 58] and Plaintiff’s Motion for Appointment of Counsel [Doc. No. 56] are DENIED as
moot.
IT IS SO ORDERED this 26th day of August, 2019.

2

Because the Court lacks jurisdiction, the dismissal must be without prejudice to refiling,
even if refiling would be futile. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th
Cir. 2006); see also McCracken v. Progressive Direct Ins. Co., 896 F.3d 1166, 1171 (10th Cir.
2018); Barnes v. United States, 776 F.3d 1134, 1151 (10th Cir. 2015).
2