Yarclay v. Averitt

• Court: District Court, W.D. Oklahoma
• Decided: September 27, 2023
• Docket: 5:22-cv-00445-G
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

JESSE M. YARCLAY, ) ) Plaintiff, ) ) v. ) Case No. CIV-22-445-G ) DR. L. AVERITT et al., ) ) Defendants. )

ORDER Plaintiff Jesse M. Yarclay, a federal prisoner appearing pro se and proceeding in forma pauperis, filed a Complaint (Doc. No. 1) alleging deprivations of his constitutional rights against multiple federal officers. In accordance with 28 U.S.C. § 636(b)(1), the matter was referred to Magistrate Judge Gary M. Purcell for initial proceedings. On July 8, 2022, Judge Purcell issued a Report and Recommendation (“R. & R.,” Doc. No. 11), recommending that this action be dismissed on screening for failure to state a claim on which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Plaintiff timely submitted an Objection (Doc. No. 13) to the R. & R, as well as a Letter (Doc. No. 12). Pursuant to governing authority, the Court reviews de novo the portions of the R. & R. to which specific objections have been made. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Having conducted this de novo review, the Court finds as follows. In the R. & R., Judge Purcell addressed Plaintiff’s factual allegations and the applicable standards of review. Judge Purcell concluded that Plaintiff’s claim for violation of the Fourteenth Amendment should be dismissed because such claims are properly

brought against federal officers pursuant to the Fifth Amendment. See R. & R. at 3-5 (citing Greene v. Impson, 530 F. App’x 777, 779 n.3 (10th Cir. 2013)). Judge Purcell further concluded that Plaintiff’s remaining claims should be dismissed because no damages claim for the alleged deprivations is available under Bivens,1 which is the decision that “authorize[s] a damages action against federal officials” for certain constitutional

violations. Egbert v. Boule, 142 S. Ct. 1793, 1799 (2022); see R. & R. at 5-14. In his submissions, which the Court construes liberally due to Plaintiff’s pro se status, Plaintiff does not specifically dispute any of Judge Purcell’s findings or conclusions. Rather, Plaintiff presents additional factual allegations in support of his legal claims and affirms that he is seeking to bring his claims pursuant to Bivens. See Pl.’s Obj. at 1-2; Pl.’s

Letter at 1-2. Nothing in Plaintiff’s Objection or Letter provides a basis to reject Judge Purcell’s conclusion regarding Plaintiff’s inability to pursue these claims pursuant to Bivens. CONCLUSION Accordingly, the Court ADOPTS the Report and Recommendation (Doc. No. 11)

in its entirety. This matter is DISMISSED without prejudice.2

1 Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971). 2 Plaintiff’s requests to amend and for appointment of counsel are denied as moot. A separate judgment shall be entered. IT IS SO ORDERED this 27th day of September, 2023.

CHARLES B.GOODWIN United States District Judge