Faulkner v. McCurdy et al
ORDER granting 42 Motion to Dismiss; adopting Report and Recommendations re 47 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 7/14/2021. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
Case No. CIV-19-1173-D
Plaintiff Kent Faulkner, a state prisoner, brought this civil rights action under 42
U.S.C. § 1983 against Defendants Joel McCurdy, Mike McDougal, Scott Crow, and Terri
Sample. 1 The matter was referred to United States Magistrate Judge Gary M. Purcell for
initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B) and (C).
On June 22, 2021, the magistrate judge issued a Second Supplemental Report and
Recommendation, wherein he recommended Defendants Terri Sample and Mike
McDougal’s Motion to Dismiss [Doc. No. 42], as converted to a motion for summary
judgment, be granted. See Second Supp. Rep. and Rec. [Doc. No. 47]. The magistrate judge
outlined Plaintiff’s attempts to comply with the grievance process as to Defendant Sample
and Defendant McDougal. See Second Supp. Rep. and Rec. [Doc. No. 47 at 13–16,
16–22]. However, “[a]n inmate who begins the grievance process but does not complete it
Plaintiff sued Defendant McCurdy in his individual and official capacities. Plaintiff
voluntarily dismissed his claims against McCurdy on June 15, 2021. Plaintiff sued
Defendant McDougal in his individual and official capacities.
is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his administrative
remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
Plaintiff timely filed an Objection. [Doc. No. 48]. In his Objection, Plaintiff presents
no persuasive argument or authority that would cause this Court to reject the magistrate
judge’s conclusions. To the extent Plaintiff attempts to introduce new arguments in his
objection, the Court notes that “[i]ssues raised for the first time in objections to the
magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996). Additionally, “[e]ven where the ‘available’ remedies would
appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the
administrative remedies available.” Jernigan, 304 F.3d at 1032 (citing Booth v. Churner,
532 U.S. 731, 740 (2001)).
The Court has carefully reviewed the Report and Recommendation, as well as the
case record, and fully concurs in the Report and Recommendation. Therefore, the Court,
having conducted a de novo review, finds that Plaintiff’s Objection should be overruled,
and hereby ADOPTS the Second Supplemental Report and Recommendation [Doc. No.
47] in its entirety.
IT IS THEREFORE ORDERED that Defendants Terri Sample and Mike
McDougal’s Motion to Dismiss [Doc. No. 42] is GRANTED. A separate judgment shall
be entered accordingly.
IT IS SO ORDERED this 14th day of July, 2021.
TIMOTHY D. DeGIUSTI
Chief United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?