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Bruce Fry v. Dr. Jill Wahl and C. Fenton

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


August 5, 2011

BRUCE FRY, PLAINTIFF,
v.
DR. JILL WAHL AND C. FENTON, DEFENDANTS.

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

MEMORANDUM AND ORDER

On April 22, 2010, Bruce Fry filed suit against Defendants, alleging deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Fry claimed that Defendants were deliberately indifferent to his serious medical needs, specifically, lower abdominal pain, in violation of his rights under the Eighth Amendment. On April 5, 2011, Defendant Wahl moved to dismiss Fry's claims against her, asserting that, as she was not named in any of Fry's grievances, Fry had failed to exhaust his administrative remedies as to her. Fry failed to file a timely response to Wahl's motion, and on May 13, 2011, Magistrate Judge Stephen C. Williams entered an order requiring Fry to show cause why Wahl's motion should not be granted for failure to respond. On May 18, 2011, Fry filed a two-page response to the motion in which he asserted that he had exhausted his remedies.

On July 15, 2011, pursuant to 28 U.S.C. § 636(b)(1)(B), Judge Williams submitted a Report and Recommendation ("the Report") on Wahl's motion to dismiss, recommending that the motion be granted.

The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" within 14 days of service of the Report. To date, neither party has filed objections. The period in which to file objections has expired. Therefore, pursuant to 28 U.S.C. § 636(b), this Court need not conduct de novo review. Thomas v. Arn, 474 U.S. 140, 149-52 (1985).

Accordingly, the Court ADOPTS the Report (Doc. 55) in its entirety, GRANTS Defendant Wahl's motion to dismiss (Doc. 35) and DISMISSES Fry's claims against Wahl without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2005) ("all dismissals under [Section] 1997e(a) should be without prejudice."). In light of the foregoing, the Court DENIES as moot the following pending motions: motion for protective order (Doc. 50) and motion for extension of time (Doc. 53). The Court also DENIES as moot Fry's motion to consolidate cases (Doc. 51), since Fry has only one case pending, and Fry's motion for preliminary injunction (Doc. 54), which requests relief for new allegations against medical staff not a party to this action. As a result of this Order, only Fry's claim of deliberate indifference to serious medical needs against Defendant Fenton remains in this case.

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Judge

20110805

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