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Smith v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


May 10, 2007

MARDELL MCGEE SMITH, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM and ORDER

On June 6, 2005, Mardell McGee Smith filed a pleading entitled petition for writ of habeas corpus (Doc. 1). Smith's petition challenges the Bureau of Prison's regulations regarding his assignment to a community corrections center. On January 1, 2006, with Smith's consent (Doc. 5), the Court, pursuant to Richmond v. Scibana, 387 F.3d 602, 605-06 (7th Cir. 2004), converted the case to a civil case under the Administrative Procedures Act, 5 U.S.C. § 551 et. seq (Doc. 6).

On February 9, 2007, the Government filed a motion to dismiss Smith's civil action arguing that the Court lacks jurisdiction as Smith has failed to exhaust his administrative remedies (Doc. 16). Thereafter, on April 9, 2007, Magistrate Judge Frazier entered an Order allowing Smith up to and including April 20, 2007 to file a response to the motion to dismiss or risk that the merits of the motion to dismiss be deemed admitted pursuant to Local Rule 7.1(c) (Doc. 17).*fn1 As of this date, Smith has not responded to the motion to dismiss. Thus, the Court considers this failure to respond as an admission of the merits of the motion to dismiss. Accordingly, the Court GRANTS the Government's motion to dismiss (Doc. 16). The Court DISMISSES without prejudice Smith's case of action for lack of jurisdiction. The Court will close the file.

IT IS SO ORDERED.

David R. Herndon United States District Judge


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