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, )

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.

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Gaillard also objects to issues not particular to the recommendation.

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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

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