Phillip Lee Kelley v. Jason Sparks, et al.

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA

PHILLIP LEE KELLEY, ) ) Plaintiff, ) ) v. ) Case No. CIV-25-856-R ) JASON SPARKS, et al., ) ) Defendants. )

ORDER

This action is before the Court for review of the Report and Recommendation [Doc. No. 6] issued by United States Magistrate Judge Amanda L. Maxfield pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Judge Maxfield recommends that Plaintiff’s Complaint be dismissed for failure to state a claim. Plaintiff filed a Response [Doc. No. 8] and the Court must therefore conduct a de novo review of those portions of the Report to which a specific objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Plaintiff’s Response first argues that the Court erred by issuing a Report and Recommendation before service was made on any of the defendants. However, 28 U.S.C. § 1915A requires the court to screen prisoner complaints “as soon as practicable after docketing” and dismiss any portions of the complaint that fails to state claim. Service on the defendants is not required prior to screening.1

1 Plaintiff, who is not proceeding in forma pauperis, is responsible for completing service of process. See Fed. R. Civ. P. 4(c). Liberally construed, Plaintiff's response next objects to the Report’s conclusion that the Complaint did not include enough facts to state a plausible claim under the Eighth Amendment. However, to preserve an issue for de novo review by the district court, “a party’s objections to the magistrate judge’s report and recommendation must be both timely and specific.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Plaintiff's conclusory assertion that the Report reached the wrong conclusion is not sufficiently specific to preserve this issue for de novo review. Plaintiff does not explain how Judge Maxfield misconstrued his factual allegations or why the factual allegations are sufficient to state a plausible claim. Further, he makes no effort to distinguish between his official and individual capacity claims. Plaintiff has therefore waived further review of these issues by failing to raise a specific objection to the Report. In any event, for the reasons stated in the Report, the Court agrees that Plaintiff has not plausibly alleged an Eighth Amendment failure to protect claim against defendants in their individual or official capacity. Accordingly, the Report and Recommendation [Doc. No. 6] is ADOPTED and this action is dismissed. IT IS SO ORDERED this 4" day of November, 2025.

UNITED STATES DISTRICT JUDGE