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Dupree v. Maue

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


December 7, 2009

CEDRIC DUPREE, PLAINTIFF,
v.
MAJOR MAUE, ET AL., DEFENDANTS.

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

MEMORANDUM AND ORDER

This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Philip M. Frazier (Doc. 82), recommending that Defendant Fritz's motion to dismiss, construed by the Court as a motion for summary judgment for failure to exhaust administrative remedies (part of Doc. 36), be denied. The Report and Recommendation was entered on November 5, 2009, and, to date, no objections have been filed.

On May 29, 2009, various defendants filed a motion to dismiss based upon several grounds (Doc. 36). Thereafter, the part of the motion filed by Defendant Fritz for failure to exhaust administrative remedies was converted to a motion for summary judgment (see Doc. 39). In accordance with the dictates of Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), Magistrate Judge Frazier held a hearing on Defendant Fritz's exhaustion affirmative defense (see Doc. 76). The undersigned district judge disposed of the other arguments asserted in the motion to dismiss by separate hearing held on August 31, 2009 (Doc. 70). Following the Pavey hearing, Magistrate Judge Frazier issued the Report and Recommendation currently before this Court.

Where timely objections are filed, this Court must undertake a de novo review of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(B), (C); FED. R. CIV. P. 72(b); SDIL-LR 73.1(b); Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court "may accept, reject or modify the magistrate judge's recommended decision." Harper, 824 F. Supp. at 788. In making this determination, the Court must look at all of the evidence contained in the record and "give 'fresh consideration to those issues to which specific objections have been made.'" Id., quoting 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8, at p. 55 (1st ed. 1973) (1992 Pocket Part).

However, where neither timely nor specific objections to the Report and Recommendation are made, pursuant to 28 U.S.C. § 636(b), this Court need not conduct a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985). Accordingly, the Court ADOPTS Magistrate Judge Frazier's Report and Recommendation (Doc. 82),*fn1 and Defendant Fritz's motion for summary judgment based on exhaustion of administrative remedies (part of Doc. 36) is DENIED. Having disposed of Defendants' motion filed May 29, 2009 (Doc. 36) in its entirety, the Court DIRECTS the Clerk of Court to terminate this motion on the Court's docket.

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge


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