Opinion
CASE NO. 5:02-cv-00091-MP.
August 14, 2007
ORDER
This matter is before the Court on Doc. 23, Motion for Reconsideration, filed by Plaintiff Craig Caldwell. In his motion, Plaintiff Caldwell seeks reconsideration of the Court's Order adopting the Report and Recommendation of the Magistrate Judge, and dismissing his complaint under 42 U.S.C. § 1983 for failure to exhaust administrative remedies and failure to state a claim. The Magistrate recommended dismissing Plaintiff's complaint because it failed to allege the requisite exhaustion, citing to Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998). InJones v. Bock, 127 S.Ct. 910, 922 (2007), the Supreme Court overturned Rivera, and held that exhaustion under the Prison Litigation Reform Act of 1995, 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e et seq., is not a pleading requirement that a prisoner must satisfy in his complaint, but rather is an affirmative defense that a defendant must plead and prove. Relying on this recent case, Plaintiff states that he was given an unwarranted strike, and seeks relief from the order adopting the Magistrate's Report. Because of the intervening case law cited by Plaintiff, the Court finds that a response from the Defendant is necessary to evaluate Plaintiff's motion. Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant is directed to file a response to Plaintiff Caldwell's Motion for Reconsideration, Doc. 23.
DONE AND ORDERED