Opinion
Case No. C05-5315RJB.
May 26, 2006
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS WITHOUT PREJUDICE
This matter comes before the court on the Report and Recommendation of the Magistrate Judge (Dkt. 18) and on plaintiff's motion to dismiss without prejudice (Dkt. 15 and 16). The court has considered the relevant documents and the remainder of the file herein.
On April 24, 2006, U.S. Magistrate Judge J. Kelley Arnold issued a Report and Recommendation, recommending that defendant's motion for summary judgment be granted in this civil case, on the basis that plaintiff had failed to exhaust administrative remedies. Dkt. 18. On March 27, 2006, plaintiff filed a motion, requesting that the court dismiss this case without prejudice. Dkt. 15 and 16. Plaintiff stated that he is terminally ill and affected by a chronic liver infection, and that he is physically and mentally unable to proceed pro se in this litigation. Dkt. 16. Plaintiff did not file a response to defendant's motion for summary judgment; defendant did not file a response to plaintiff's motion to dismiss the case without prejudice.
The court concurs with the conclusion of the magistrate judge that plaintiff failed to exhaust administrative remedies, and that any dismissal of the case on this basis should be without prejudice. Plaintiff has requested a dismissal without prejudice, and defendant has not filed opposition to that motion. Accordingly, the court should grant plaintiff's motion to dismiss the case without prejudice. The Report and Recommendation is moot. Therefore, it is hereby
ORDERED that plaintiff's motion to dismiss (Dkt. 15 and 16) is GRANTED. This case is DISMISSED WITHOUT PREJUDICE. The Report and Recommendation (Dkt. 18) is moot.
The Clerk is directed to send uncertified copies of this Order to all counsel of record, to any party appearing pro se at said party's last known address, and to U.S. Magistrate Judge J. Kelley Arnold.