United States District Court, D. Kansas
MATTHEW T. GARDINER, Plaintiff,
BILL MCBRYDE, et al., Defendants.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
11, 2018, Judge James P. O'Hara issued a Report and
Recommendation (Doc. 73), recommending that the district
judge deny plaintiff's Motion for Emergency Temporary
Restraining Order (Doc. 68) and Motion to Reconsider and
Clarify Case Status (Doc. 69).
Motion for Emergency Temporary Restraining Order seeks an
order preventing the Texas Department of Criminal Justice
from destroying or confiscating his legal documents and
treatises when the Department transfers plaintiff from the
Deaf-Smith County Jail to another facility in Texas. In his
Order, Judge O'Hara explained that he conducted a
telephone status conference with the parties on June 7, 2018,
to gather more information about plaintiff's motions.
Doc. 73 at 1. Cpl. Vicki Cates accompanied plaintiff to the
conference at the Deaf-Smith County Jail. Id. at 2.
During the conference, Judge O'Hara asked Cpl. Cates if
she could inquire whether the Department would permit
plaintiff to take his legal materials with him when he is
transferred to another facility. Id. And, after the
conference, Cpl. Cates sent an email to the court advising
that plaintiff could take his legal materials with him when
he leaves the Deaf-Smith County Jail. Id. Based on
this correspondence, Judge O'Hara recommended that the
district judge deny as moot plaintiff's Motion for
Emergency Temporary Restraining Order. Id.
Motion to Reconsider and Clarify Case Status asks the court
to reconsider whether this case is subject to the
requirements of the Prison Litigation Reform Act
(“PLRA”). More specifically, plaintiff asserts
that, because he was not in custody when he filed his Amended
Complaint, he does not bring this case as a “prisoner,
” and thus the PLRA's requirements don't govern
this action. Judge O'Hara recommended that the district
court deny this motion as premature because it calls for an
opinion without context of any specific issue that the court
needs to decide at this stage of the proceedings.
Id. at 3.
O'Hara concluded his Report and Recommendation by
explaining to plaintiff that he may serve and file objections
to the Report and Recommendation under 28 U.S.C. §
636(b)(1) and Fed.R.Civ.P. 72, within 14 days after service.
Id. He also advised plaintiff that failing to make a
timely objection to the Report and Recommendation waives any
right to appellate review of the proposed findings of fact,
conclusions of law, or recommended disposition. See
Id. (explaining that “[i]f plaintiff does not
timely file his objections, no court will allow appellate
Clerk mailed a copy of the Report and Recommendation to
plaintiff at the Deaf-Smith County Jail. See Docket
Entry for Doc. 73. That mailing was returned as undeliverable
because, when it arrived, plaintiff was no longer an inmate
at the jail. See Doc. 82. On June 26, 2018, the
Clerk mailed another copy of the Report and Recommendation to
plaintiff's correct address at a different facility.
See Docket Entry for Doc. 82.
of the Report and Recommendation was accomplished by
“mailing it to [plaintiff's] last known address-in
which event service [was] complete upon mailing.”
Fed.R.Civ.P. 5(b)(2)(C); see also ReVoal v.
Brownback, No. 14-4076, 2014 WL 5321093, at *1 (D. Kan.
Oct. 16, 2014). That mailing occurred on June 26, 2018, when
the Clerk mailed the Report and Recommendation to plaintiff
at his new address. See Doc. 82. The time for
plaintiff to file any objections to the Report and
Recommendation thus has expired.
date, plaintiff has filed no objections to Judge
O'Hara's Report and Recommendation, nor has he sought
to extend the time to file an objection. If an aggrieved
party objects to the magistrate judge's report and
recommendation, the district judge assigned to the case
“must determine de novo any part of the magistrate
judge's disposition that has been properly objected
to.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”). But when a plaintiff has not objected to a
Report and Recommendation properly, the court has
“considerable discretion” to review the
recommendation under “any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991). After reviewing plaintiff's
motions and Judge O'Hara's Report and Recommendation,
the court agrees with Judge O'Hara's recommendation
in its entirety. And, because plaintiff has filed no
objection to the Report and Recommendation within the time
prescribed, and he has sought no extension of time to file an
objection, the court accepts, adopts, and affirms the Report
and Recommendation in its entirety.
IS THEREFORE ORDERED that, after reviewing the file
de novo, the Report and Recommendation issued by
United States Magistrate Judge James P. O'Hara on June
11, 2018 (Doc. 73) is ACCEPTED, ADOPTED, and
IS FURTHER ORDERED THAT plaintiff's Motion for
Emergency Temporary Restraining Order (Doc. 68) is denied as
IS FURTHER ORDERED THAT plaintiff's Motion to
Reconsider and Clarify Case Status (Doc. 69) is denied
without prejudice because it is premature.