Martin v. Burgess

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

CLAYTON JAY MARTIN,

Plaintiff, Case No. 24-4079-DDC-GEB

v.

RICHARD BURGESS, JR., et al.,

Defendants.

MEMORANDUM AND ORDER

Before the court is United States Magistrate Judge Gwynne E. Birzer’s Report and Recommendation (Doc. 10). Magistrate Judge Birzer recommends that the court dismiss this case without prejudice for failure to state a claim upon which relief can be granted. Id. at 15. Magistrate Judge Birzer also recommends imposing filing restrictions on plaintiff by requiring him to secure leave of court “to initiate any new civil case in this District against personnel of the Barton County District Court, Barton County Attorney’s Office, Barton County Sheriff’s Office, and Great Bend Police Department without representation by an attorney admitted to practice before this court.” Id. at 16–17. Plaintiff Clayton Jay Martin1 received notice of his right to file an objection to the Report and Recommendation within 14 days of its service under 28 U.S.C. § 636(b)(1) and Fed. R. Civ.

1 Because plaintiff appears pro se, the court construes his pleadings liberally and holds them “to a less stringent standard than formal pleadings drafted by lawyers.” See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court can’t assume the role of his advocate. Id. Also, plaintiff’s pro se status doesn’t excuse him from “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Id. P. 72(b)(2). Id. at 1. The Report and Recommendation also explained that plaintiff, to secure appellate review, must file any objections within the 14-day period. Id. at 1–2. The Clerk sent a copy of the Report and Recommendation to plaintiff by regular mail, using the address plaintiff had provided to the court. Doc. 10. Service of the Report and Recommendation was accomplished by “mailing it to [plaintiff’s] last known address—in which

event service [was] completed upon mailing.” Fed. R. Civ. P. 5(b)(2)(C); ReVoal v. Brownback, No. 14-4076, 2014 WL 5321093, at *1 (D. Kan. Oct. 16, 2014). “Mailing” occurred on January 22, 2025, when the Clerk mailed the Report and Recommendation to plaintiff. See Doc. 10. Thus, the time for plaintiff to file an objection expired on February 5, 2025. Plaintiff has filed no objection. Nor has plaintiff sought an extension of time to file an objection. And so, the court now can accept, adopt, and affirm the Report and Recommendation. And it does so. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate’s report under any standard it deems appropriate.”); see also Garcia v. City of Albuquerque, 232 F.3d 760, 766–67 (10th Cir. 2000)

(explaining under Fed. R. Civ. P. 72(b) a district court must make a de novo determination only for those portions of the report and recommendation to which a party specifically has objected). Having reviewed plaintiff’s Complaint (Doc. 1) and Magistrate Judge Birzer’s Report and Recommendation (Doc. 10), the court determines that Magistrate Judge Birzer’s analysis and conclusions are sound. The court thus adopts Magistrate Judge Birzer’s recommendation and dismisses plaintiff’s Complaint (Doc. 1) for failing to state a cognizable claim. The court also adopts Magistrate Judge Birzer’s recommendation that the court impose filing restrictions on plaintiff. The court directs the Clerk of the Court to enter Judgment consistent with this Order and close this case. IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Complaint (Doc. 1) is dismissed. IT IS FURTHER ORDERED THAT plaintiff must secure leave of court to initiate any new civil case in the District of Kansas against personnel of the Barton County District Court, Barton County Attorney’s Office, Barton County Sheriff’s Office, and Great Bend Police

Department without representation by an attorney admitted to practice before this court. AND IT IS FURTHER ORDERED BY THE COURT THAT the Report and Recommendation issued by United States Magistrate Judge Gwynne E. Birzer on January 22, 2025 (Doc. 10) is ACCEPTED, ADOPTED, and AFFIRMED. IT IS SO ORDERED. Dated this 29th day of September 2025, at Kansas City, Kansas. s/ Daniel D. Crabtree Daniel D. Crabtree United States District Judge