Opinion
Case No. 3:04cv239/RV/MD.
November 22, 2005
ORDER
This cause comes on for consideration upon the magistrate judge's report and recommendation dated October 21, 2005. The plaintiff has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1), and I have made a de novo determination of those portions to which an objection has been made.
Having considered the report and recommendation and all objections thereto timely filed, I have determined that the report and recommendation should be adopted.
Accordingly, it is now ORDERED as follows:
1. The defendants' motion to dismiss the complaint for failure to exhaust administrative remedies (doc. 30) is granted in part and denied in part as follows:
a. Defendant Rummel's motion to dismiss the complaint against him is GRANTED, and plaintiff's action with respect to this defendant is dismissed in its entirety without prejudice.
b. Defendant Nichols' motion to dismiss is DENIED with respect to plaintiff's claim that she violated his Eighth Amendment rights by refusing to return his knee brace and orthopedic shoes.
c. Defendant Nichols' motion to dismiss is GRANTED with respect to plaintiff's remaining claims against her, and these claims are dismissed without prejudice for plaintiff's failure to exhaust his administrative remedies.
2. Defendant Nichols is required to file a special report as previously instructed within thirty days of this order.
DONE AND ORDERED.