Vue v. Henke et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION 28 of Magistrate Judge Gary Purcell; the remainder of plaintiff's objections are simply reassertions of arguments raised in his complaint and properly considered by Magistrate Judge Purcell; accordingly, the Report and Recommendation is adopted and plaintiff's complaint is dismissed without prejudice. Signed by Honorable Joe Heaton on 05/29/2018. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ONG VUE,

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Plaintiff,
vs.
FRANK X. HENKE, et al.,
Defendants.

NO. CIV-18-0366-HE

ORDER
Plaintiff Ong Vue, a state prisoner appearing pro se, filed this § 1983 action alleging
violations of his constitutional rights. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the
matter was referred to Magistrate Judge Gary M. Purcell for initial proceedings. Judge
Purcell has issued a Report and Recommendation (the “Report”) recommending that
plaintiff’s complaint be dismissed pursuant to 28 U.S.C.§§ 1915(e)(2)(B) and 1915A(b)
for failure to state a claim upon which relief may be granted. Plaintiff has filed an objection
to the Report which triggers de novo review.
The Report concluded that plaintiff is unable to rely on Graham v. Florida and Miller
v. Alabama to support his Eighth and Fourteenth Amendment claims and that he has
suffered no Due Process or Equal Protection violations based on the allegations in his
complaint. In response, plaintiff’s objection and declaration attempt to enhance the alleged
constitutional violations by focusing on the fact that he is nonwhite and not a U.S. citizen.
The court concludes that plaintiff’s new arguments, raised for the first time in objection to
the Report, have been waived. Gonzales v. Ledezma, 417 Fed. Appx. 824, 826 (10th Cir.

2011) (citing Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for
the first time in objections to the magistrate judge’s recommendation are deemed
waived.”)). Further, the simple allegation that he was discriminated against in the parole
process because he is nonwhite and not a citizen does not raise his claims to the plausible
level.
The remainder of plaintiff’s objections are simply reassertions of arguments raised
in his complaint and properly considered by Judge Purcell. Accordingly, the Report and
Recommendation [Doc. #28] is ADOPTED.
DISMISSED without prejudice.
IT IS SO ORDERED.
Dated this 29th day of May, 2018.

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Plaintiff’s complaint [Doc. #1] is