BAILEY v. BUSS
Filing
7
ORDER ON REPORT AND RECOMMENDATION: Adopting 5 Report and Recommendation - 2 MOTION to Proceed IFP is DENIED. Case is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §1915(g). Signed by SENIOR JUDGE STEPHAN P MICKLE on 7/13/2011. (jws)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
JOHN BAILEY,
Plaintiff,
v.
CASE NO. 4:11cv304-SPM/WCS
EDWIN BUSS, et al.,
Defendants.
____________________________/
ORDER
THIS CAUSE comes before the Court on the Magistrate Judge’s Order,
Report and Recommendation dated June 21, 2011. Doc. 32. Plaintiff has been
furnished a copy and has filed objections pursuant to Title 28, United States
Code, Section 636(b)(1). Doc. 33. Despite the objections, I have determined
that the report and recommendation is correct and should be adopted.
In his objections, Plaintiff argues that instead of dismissing his § 1983
complaint, the Court should treat it as a habeas petition challenging the
disciplinary action. Plaintiff’s complaint, however, is not on the habeas form and
lacks sufficient detail to establish that he raised his federal claims in state court
so as to exhaust his remedies, or that he has cause and prejudice to overcome a
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procedural default. If Plaintiff wishes to file a habeas petition, he has the
opportunity to do so on the proper form since the dismissal here is without
prejudice. Accordingly, it is
ORDERED AND ADJUDGED:
1.
The Magistrate Judge’s Order, Report and Recommendation (doc.
5) is ADOPTED and incorporated by reference in this order.
2.
Plaintiff’s Motion to proceed in forma pauperis (doc. 2) is denied
pursuant to 28 U.S.C. § 1915(g).
3.
This case is dismissed without prejudice.
4.
The Clerk of Court shall note on the docket that the dismissal is
pursuant to 28 U.S.C. § 1915(g).
DONE AND ORDERED this 13th day of July, 2011.
s/ Stephan P. Mickle
Stephan P. Mickle
Senior United States District Judge
CASE NO. 4:11cv304-SPMWCS
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