Opinion
4:23-cv-00379-LPR
04-29-2024
OCTAVIOUS HODGES #2200000361 PLAINTIFF v. JOHN GRAEF DEFENDANT
ORDER
LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE
The Court has reviewed the Recommended Disposition (RD) submitted by United States Magistrate Judge Joe J. Volpe (Doc. 17). No objections have been filed, and the time for doing so has expired. After a de novo review of the RD, along with careful consideration of the entire record, the Court hereby approves and adopts the RD in its entirety as this Court's findings and conclusions in all respects.
After the RD was entered, Defendant's counsel informed the Court that “counsel cannot state for certain whether the motion [for summary judgment] and supporting documents . . . were mailed to Plaintiff as stated in the certificates of service.” Notice (Doc. 18) at 1. Defendant's counsel did mail Plaintiff copies of those documents as of November 27, 2023. Id. at 2. And counsel does not oppose “resetting Plaintiff's response deadline” to correspond to the amended service date. Id. The Court does not believe an amended response deadline is necessary. The RD was entered on the Court's docket on November 13, 2023, and a file-marked copy was mailed to Plaintiff consistent with the Court's usual procedure. The RD explains that Plaintiff's failure to respond to the summary judgment motion resulted in Defendant's Statement of Facts being deemed admitted pursuant to Local Rules. Recommended Disposition (Doc. 17) at 2. And although the RD provided a 14-day window for objections, none were ever filed. Id. at 1. However, out of an abundance of caution, the Court will give Plaintiff 30 days to file objections to the RD demonstrating that he did in fact properly exhaust his available administrative remedies prior to filing this lawsuit. Plaintiff must file any such objections in the form of a Motion to Reconsider this Order of dismissal and the corresponding Judgment. If Plaintiff does file such a Motion, the Court will reconsider de novo any part of the RD that is properly objected to and evaluate whether this case should be re-opened.
Accordingly, Defendant's Motion for Summary Judgment (Doc. 13) is GRANTED. Plaintiff's excessive force claim against Defendant Graef is DISMISSED without prejudice, and this case will be CLOSED. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Order or the accompanying Judgment would not be taken in good faith.
IT IS SO ORDERED