Brian Thomas Brantley v. Drug Enforcement Administration

Filing 41

OPINION AND ORDER denying plaintiff's 34 Motion for summary judgment; granting defendant's 38 Cross Motion for summary judgment on the basis of the failure to exhaust administrative remedies; adopting in part 40 Report and Recom mendations as the dismissal is without prejudice. The Clerk shall enter judgment in favor of defendant and against plaintiff and the case is dismissed without prejudice for failure to exhaust administrative remedies. The Clerk is further directed to close the file. Signed by Judge John E. Steele on 8/25/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN TIMOTHY BRANTLEY,
Plaintiff,
v.

Case No:

DRUG
ADMINISTRATION,

2:15-cv-802-FtM-29CM

ENFORCEMENT

Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #40), filed
July 27, 2017, recommending that plaintiff's Motion for Summary
Judgment (Doc. #34) be denied, defendant's Cross Motion for Summary
Judgment (Doc. #38) be granted, and that plaintiff's claims be
dismissed with prejudice.

No objections have been filed and the

time to do so has expired.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.
636(b)(1);

28 U.S.C. §

Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982),

cert. denied, 459 U.S. 1112 (1983).

In the absence of specific

objections, there is no requirement that a district judge review
factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9
(11th Cir. 1993), and the court may accept, reject or modify, in

whole or in part, the findings and recommendations, 28 U.S.C. §
636(b)(1).

The district judge reviews legal conclusions de novo,

even in the absence of an objection.

See Cooper-Houston v.

Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro
Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993),
aff’d, 28 F.3d 116 (11th Cir. 1994) (Table).
After conducting an independent examination of the file and
upon due consideration of the Report and Recommendation, the Court
accepts the Report and Recommendation of the magistrate judge to
dismiss for failure to exhaust administrative remedies.

“Before

seeking review by a court of a component's adverse determination,
a requester generally must first submit a timely administrative
appeal.”

28 C.F.R. § 16.8(e) (emphasis added).

It is undisputed

that plaintiff’s appeal was closed for failure to file a timely
appeal.

(Doc. #38-1, Exh. K.)

Although exhaustion under FOIA is

not jurisdictional, timely exhaustion is required to state a claim.
Taylor v. Appleton, 30 F.3d 1365, 1368 n.3 (11th Cir. 1994).

See,

e.g., Bonilla v. U.S. Dep't of Justice, 535 F. App'x 891, 893 (11th
Cir. 2013) (finding dismissal appropriate when appeal was not
timely filed).

The Court agrees that summary judgment in favor

of the government is appropriate, however the case will be deemed
dismissed without prejudice for the failure to exhaust.
Accordingly, it is now
ORDERED:

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1.

The

Report

and

Recommendation

(Doc.

#40)

is

hereby

adopted in part and the findings otherwise incorporated herein.
The dismissal will be without prejudice.
2.

Plaintiff's Motion for Summary Judgment (Doc. #34) is

DENIED.
3.

Defendant’s Cross Motion for Summary Judgment (Doc. #38)

is GRANTED on the basis of the failure to exhaust administrative
remedies.
4.

The Clerk shall enter judgment in favor of defendant and

against plaintiff and the case is dismissed without prejudice for
failure to exhaust administrative remedies.
5.

The Clerk is further directed to terminate all pending

motions and deadlines, and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2017.

Copies:
Hon. Carol Mirando
United States Magistrate Judge
Counsel of Record
Unrepresented parties

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25th

day