Summary
finding that unserved defendants should be dismissed sua sponte due to the plaintiff's failure to exhaust his administrative remedies
Summary of this case from Flores v. DelevarqezOpinion
No. CIV-07-82-W.
December 17, 2007
ORDER
On November 5, 2007, United States Magistrate Judge Gary M. Purcell issued a Report and Recommendation in this matter and recommended that the Court dismiss this matter because plaintiff Darryel R. Deere had failed to exhaust available administrative remedies. Deere was advised of his right to object, and the matter now comes before the Court on Deere's Response to the Court's Recommendation to Dismiss Complaint.
Upon de novo review of the record, the Court concurs with Magistrate Judge Purcell's suggested disposition of this matter. Deere conceded in his initial pleading and thereafter, see Response to the Court's Recommendation to Dismiss Complaint [Doc. 36] at 2, that he had not exhausted his administrative remedies. Under the circumstances, the Court finds that the Motion to Dismiss filed by defendant Grady County Sheriff should therefore be granted. The Court finds that unserved defendants "Paul" and "L.T." should likewise be dismissed sua sponte due to Deere's failure to exhaust administrative remedies. E.g.,Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).
Accordingly, the Court
(1) ADOPTS the Report and Recommendation filed on November 5, 2007;
(2) GRANTS the Motion to Dismiss filed on October 1, 2007, by defendant Grady County Sheriff and DISMISSES this defendant; and
(3) sua sponte DISMISSES unserved defendants "Paul" and "L.T."