United States District Court, W.D. Oklahoma
ORDER ADOPTING REPORT AND RECOMMENDATION
J. CAUTHRON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Reports and Recommendations
(“R&Rs”) entered by United States Magistrate
Judge Bernard M. Jones. (Dkt. Nos. 31, 32.) Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B), the matter was
referred to the Magistrate Judge, who entered two
R&Rs recommending that Defendants' Motion
to Dismiss, or, in the Alternative, Motion for Summary
Judgment (Dkt. No. 26) be granted in part and denied in part.
All parties submitted timely objections, and the Court
reviews the matter de novo. Also before the Court are
Plaintiff's “Motion of Objection” (Dkt. No.
34) (hereafter “Objection”), Defendants'
Motion to Strike (Dkt. No. 40), and Plaintiff's Motion
for the Allowance of a Witness (Dkt. No. 41).
objections, Plaintiff largely relies on evidence that was not
presented to the Magistrate Judge; in fact, Plaintiff did not
even file a response to Defendants' dispositive motion.
As a result, Defendants submitted their Motion to Strike,
contending that Plaintiff should not be permitted to present
this evidence to this Court. So before addressing the merits
of his objections, the Court must decide whether it will
consider any of this evidence from Plaintiff. Upon review of
an objection to a magistrate judge's recommendation,
“[t]he [district court] judge may . . .
receive further evidence or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. §
636(b)(1) (emphasis added); see Gonzales v. Qwest
Commc's Corp., 160 Fed.Appx. 688, 691 (10th Cir.
Court finds, however, that it should not consider any
additional evidence presented here that was not presented to
the Magistrate Judge. As mentioned, Plaintiff failed to
present any evidence or argument to the Magistrate
Judge in response to Defendants' dispositive motion, and
has yet to offer a good reason for not doing so.
does mention in his objections that he did not “know or
realize that [he] was allowed to argue against the incorrect
statements” within the Special Report. (Dkt. No. 34, p.
1.) Plaintiff, however, was expressly advised otherwise by
the Magistrate Judge:
Any Defendant's reliance on materials not attached to or
incorporated by reference in the Complaint and not excluded
by the Court shall result in the Court's conversion of a
motion to dismiss into a motion for summary judgment.
See Fed.R.Civ.P. 12(d); 56. Should this occur,
Plaintiff is notified of his responsibility to present to
the Court all evidence or materials pertinent to a motion for
(Dkt. No. 6, p. 2) (emphasis added).
(1) the Court will not consider any additional evidence
presented by Plaintiff that was not presented to the
Magistrate Judge, (2) Plaintiff's Objection and Motion
for the Allowance of a Witness will be denied, and (3)
Defendants' Motion to Strike will be granted. The Court
also finds that, absent this new evidence, Plaintiff's
objections fail to call into question any of the Magistrate
first take issue with the Magistrate Judge's conclusion
that they failed carry their initial burden of demonstrating
that no disputed material fact existed regarding their
failure-to-exhaust argument. In Defendants' view, because
Plaintiff failed to respond to the factual assertion
(declaring that Plaintiff failed to exhaust his claims)
within their summary judgment motion, this fact should be
deemed admitted-thereby creating an undisputed material fact
regarding exhaustion. (Dkt. No. 35, p. 3.) But summary
judgment motions, even when unrebutted, must still be
properly supported. Additionally, the Court is not required to
deem unrebutted factual statements admitted: “All
material facts set forth in the statement of material facts
of the movant may be deemed admitted for the purpose
of summary judgment unless specifically controverted by the
nonmovant using the procedures set forth in this rule.”
LCvR56.1(e) (emphasis added). Moreover, as the Magistrate
Judge pointed out, the Special Report raises questions about
the reliability of the factual statement upon which
Defendants rely. (See Dkt. No. 32, p. 11; see
also Dkt. No. 25, p. 7.) Thus, Defendants have failed to
carry their burden here, and summary judgment will be denied
on their failure-to-exhaust affirmative defense.
further object to the Magistrate Judge's treatment of the
claims remaining against Defendants Lawson and Good, taking
issue with the judge's application of the summary
judgment standard to some of the claims, while applying the
12(b)(6) standard to others. (Dkt. No. 35, p. 5.) Yet, upon
review of Defendants' briefing, they failed to clarify
which arguments were being offered under any particular
theory-leaving the Magistrate Judge in the position of
deciphering this. (See generally Dkt. No. 26.)
Additionally, Defendants' arguments surrounding the
denial of medical care claims against Defendants Lawson and
Good use language more commonly associated with the 12(b)(6)
standard than the summary judgment one. (See id. at
26-30.) Accordingly, the Court will not disturb the
Magistrate Judge's findings here. The Court further finds
that Defendants have failed to raise a meritorious objection
regarding the denial of medical care claims against
Defendants Good and Lawson, or these Defendants'
entitlement to qualified immunity. In short, the Court finds
that the recommendations of the Magistrate Judge should be
these reasons, (1) the Magistrate Judge's Reports and
Recommendations (Dkt. Nos. 31 & 32) are ADOPTED; (2)
Defendants' Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment (Dkt. No. 26) is GRANTED in part
and DENIED in part; (3) Plaintiff's Motion of Objection
(Dkt. No. 34) is DENIED; (4) Defendants' Motion to Strike
(Dkt. No. 40) is GRANTED; and (5) Plaintiffs Motion for
Submission or Allowance of a Witness ...