Opinion

Brown v. Rohrbough

Court
District Court, W.D. Oklahoma
Filed
Jan 12, 2022
Cited by
0 cases
Authority
More cited than 28.6%

“Any delay in receiving the magistrate’s recommendation resulted from [pro se plaintiff’s] failure to correct or change his address in a clear and concise way likely to bring it to the court’s attention.”

How later courts described this case

  • “Any delay in receiving the magistrate’s recommendation resulted from [pro se plaintiff’s] failure to correct or change his address in a clear and concise way likely to bring it to the court’s attention.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MICHAEL JAMES PETISCA BROWN, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-00385-JD

)

BARRY ROHRBOUGH, detention )

officer in official capacity and individually, )

and STEPHENS COUNTY, OK, )

)

Defendants. )

ORDER

Before the Court is a Report and Recommendation [Doc. No. 11] issued by United

States Magistrate Judge Shon T. Erwin on August 20, 2021. The Report and

Recommendation recommends that with respect to Plaintiff Michael James Petisca

Brown’s (“Brown”) complaint under 42 U.S.C. § 1983 [Doc. No. 1], the Court:

(1) dismiss, without prejudice, any official capacity claim for monetary

damages against Barry Rohrbough;

(2) dismiss, without prejudice, any claim against Stephens County; and

(3) conclude that Brown may proceed in his claim for failure to protect against

Rohrbough in Rohrbough’s individual capacity, limited to the recovery of

monetary damages.

Report and Recommendation at 7.

Judge Erwin advised Brown that he may file an objection to the Report and

Recommendation with the Clerk of Court by September 7, 2021, and that failure to

timely object to the Report and Recommendation waives the right to appellate review of

both factual and legal issues contained in the Report and Recommendation. [Id.]. See also

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

The record reflects that Brown did not timely file an objection to the Report and

Recommendation or request an extension of time to do so.1 Having reviewed the Report

and Recommendation and all filings in this case, the Court agrees with the Report and

Recommendation.

The Court therefore ADOPTS the Report and Recommendation [Doc. No. 11] for

the reasons stated therein. The Court DISMISSES WITHOUT PREJUDICE any official-

capacity claim against Rohrbough and any claims against Stephens County. Stephens

County is thus terminated as a party in this action.

Brown’s remaining individual capacity claim against Defendant Rohrbough

remains referred to Judge Erwin for further proceedings. See [Doc. No. 4].

1 The Court notes that the Report and Recommendation was returned as

undeliverable [Doc. No. 12]. However, Brown is responsible for timely notifying the

Court of any change of address, and “[p]apers sent by the court will be deemed delivered

if sent to the last known address given to the court.” LCvR5.4; see also Theede v. U.S.

Dep’t of Labor, 172 F.3d 1262, 1265 (10th Cir. 1999) (“Any delay in receiving the

magistrate’s recommendation resulted from [pro se plaintiff’s] failure to correct or

change his address in a clear and concise way likely to bring it to the court’s attention.”);

Fed. R. Civ. P. 5(b)(2)(C) (paper is served by “mailing it to the person’s last known

address—in which event service is complete upon mailing”). The Court is not required to

make efforts to locate a party’s current address. See Theede, 172 F.3d at 1267 (“It would

be unreasonable to require courts to wade through a party’s file in order to determine the

most recent or most likely address at which to contact the party. The parties are far better

situated to know of any errors in their address information, thus, they bear the burden of

filing notice of a change of address in such a way that will bring the attention of the court

to the address change. . . . The fact that [plaintiff] is acting pro se does not eliminate this

burden.”).

IT IS SO ORDERED this 12th day of January 2022.

W. DISHMAN

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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