Gaillard v. Nicholson (MAG+)

Filing 45

ORDER overruling Gaillard's 44 Objections; adopting 40 Report and Recommendations; dismissing this case without prejudice based upon Gaillard's failure to exhaust administrative remedies; granting defendant's 32 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment; denying as moot plaintiff's 35 request for appointment of counsel; that this case is dismissed with prejudice. Signed by Honorable William Keith Watkins on 2/17/2009. (cc, )

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION HENRY A. GAILLARD, Plaintiff, v. R. JAMES NICHOLSON, Secretary, Department of Veterans Affairs, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO. 3:08-CV-461-WKW MEMORANDUM OPINION & ORDER On October 31, 2008, the Magistrate Judge filed a Report and Recommendation ("Recommendation") in this case. (Doc. # 40.) Plaintiff Henry A. Gaillard ("Gaillard") objected to the Recommendation. (Doc. # 44.) Gaillard objects that a review of the evidence "will confirm that appropriate administrative avenues were exhausted."1 (Doc. # 44 2.) The portions of a recommendation to which a defendant objects are reviewed de novo. 28 U.S.C. 636(b)(1)(C). A de novo review of the record and law confirms that the Magistrate Judge's Recommendation (Doc. # 40) to grant Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. # 32) should be adopted because Gaillard failed to exhaust his administrative remedies. Therefore, it is ORDERED that: 1. Gaillard's objections (Doc. # 44) are OVERRULED. 1 Gaillard also objects to issues not particular to the recommendation. 2. The Recommendation of the Magistrate Judge (Doc. # 40) that Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. # 32) is ADOPTED, and the case is DISMISSED without prejudice based upon Gaillard's failure to exhaust administrative remedies. 3. 4. MOOT. 5. This case is DISMISSED with prejudice. Defendant's motion (Doc. # 32) is GRANTED. Plaintiff's request for appointment of counsel (Doc. # 35 5) is DENIED AS DONE this 17th day of February, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?