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Brian Mcdaniel v. Dr. Birch

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


August 15, 2012

BRIAN MCDANIEL, PLAINTIFF,
v.
DR. BIRCH, DEFENDANT.

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

MEMORANDUM AND ORDER

Brian McDaniel filed this civil rights suit under 42 U.S.C. 1983, alleging deprivations of his constitutional rights while incarcerated at Vienna Correctional Center in the custody of the Illinois Department of Corrections. On threshold review of McDaniel's second amended complaint under 28 U.S.C. 1915A, the undersigned Judge dismissed certain claims and allowed the case to proceed as to Dr. Kimberly Birch. Service was ordered, and the case was referred to the Honorable Stephen C. Williams, United States Magistrate Judge, to handle pretrial matters pursuant to Local Rule 72.1(a).

On March 12, 2012, Defendant Birch moved for summary judgment, to which Plaintiff McDaniel responded on April 30, 2012. On July 25, 2012, Magistrate Judge Williams filed a thorough Report (Doc. 57) recommending that the undersigned District Judge grant Birch's summary judgment motion due to Plaintiff's failure to exhaust administrative remedies before filing this suit, dismiss this case without prejudice, and deny as moot all remaining pending motions. The Report advised the parties that any objections must be filed "on or before August 13, 2012" (Doc. 57, p. 14).

As of the 8:00 pm on August 15, 2012, no objections were filed by any party. Accordingly, pursuant to 28 U.S.C. 636(b), the undersigned Judge need not conduct de novo review of the Report and Recommendations. 28 U.S.C. 636(b)(1)(C). See also Thomas v. Arn, 474 U.S. 140 (1985); Johnson v. Zema Systems Corp., 170 F.3d 734, 741 (7th Cir. 1999); Video Views Inc., v. Studio 21, Ltd., 797 F.2d 538 (7th Cir. 1986).

No objections have been filed to the Report submitted by Judge Williams. The Court hereby ADOPTS that Report (Doc. 57) in its entirety, GRANTS Defendant Birch's summary judgment motion (Doc. 43), and DISMISSES Plaintiff's claims against Defendant Birch without prejudice. See Burrell v. Powers, 431 F.3d 282, 284 (7th Cir. 2005), citing Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002)("Dismissal for failure to exhaust is without prejudice.."); Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)("We therefore hold that all dismissals under § 1997e(a) should be without prejudice"). As recommended in Judge Williams' Report, the Court also FINDS MOOT the remaining motions (Docs. 31, 40, and 53) and, because no claims remain herein, DIRECTS THE CLERK OF COURT TO ENTER FINAL JUDGMENT. Judgment shall be entered in favor of all Defendants and against Plaintiff, in accord with this Order and the June 13, 2011 Order (Doc. 14).

IT IS SO ORDERED.

Michael J. Reagan United States District Judge

20120815

© 1992-2012 VersusLaw Inc.



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