Opinion
CIVIL ACTION NO. 5:12-CV-292 (MTT)
03-20-2013
BRAJA SMITH, Plaintiff, v. BRIAN OWENS, et al., Defendants.
ORDER
This matter is before the Court on the Recommendation of United States Magistrate Judge Stephen Hyles. (Doc. 23). The Magistrate Judge, having reviewed the Defendants' Motion to Dismiss (Doc. 16), recommends granting the Motion because the Plaintiff failed to exhaust his available administrative remedies pursuant to 42 U.S.C. § 1997e(a) on his claims. The Plaintiff filed an objection to the Recommendation. (Doc. 24).
Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered the Plaintiff's objections and has made a de novo determination of the portions of the Recommendation to which the Plaintiff objects. The Plaintiff admits that he did not file a formal grievance but argues that he could not file a formal grievance because his informal grievance was rejected as untimely. Even if the Plaintiff's informal grievance was rejected as untimely, he was still required to file a formal grievance to exhaust his administrative remedies regardless of whether he was denied access to the form within the time period to file a formal grievance. The Plaintiff's grievance history clearly shows that he had access to formal grievance forms after his informal grievance was rejected, and the Plaintiff could have filed an out-of-time formal grievance. (Doc. 16-5 at 2).
The Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge. The Recommendation is adopted and made the order of this Court. The Defendants' Motion (Doc. 16) is GRANTED, and the Plaintiff's claims are DISMISSED without prejudice.
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MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT