Gomez v. McGahee et al

Filing 36

ORDER Adopting Magistrate Judge's Report And Recommendation re 1 Complaint 42 USC 1983; 33 Motion to Dismiss. Order dismissing without prejudice 1 Complaint; granting 33 Motion to Dismiss. Signed by Judge Jose E. Martinez on 1/8/2021. This case is CLOSED, and all pending motions are DENIED as MOOT. See attached document for full details. (kpe)

Case 1:19-cv-23822-JEM Document 36 Entered on FLSD Docket 01/08/2021 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case Number: 19-23822-CIV-MARTINEZ-REID
DYMAR GOMEZ,
Plaintiff,
vs.
CORPORAL McGAHEE, et al.,
Defendants.
_____________________________________/
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
THE MATTER was referred to the Honorable Lisette M. Reid, United States Magistrate
Judge, for a Report and Recommendation on Plaintiff’s pro se complaint, [ECF No. 1], and
Defendants’ Motion to Dismiss, [ECF No. 33]. Magistrate Judge Reid filed a Report and
Recommendation, [ECF No. 35], recommending that Defendants’ Motion to Dismiss be granted
and this action be dismissed with prejudice for failure to exhaust administrative remedies under
the Prison Litigation Reform Act. The Court has reviewed the entire record and notes that no
objections have been filed. The Court likewise notes that Plaintiff failed to respond to Defendants’
Motion to Dismiss despite being ordered to do so by the Court, [ECF No. 34].
The Court, however, dismisses Plaintiff’s complaint without prejudice rather than with
prejudice. The Report and Recommendation correctly cites Bryant v. Rich, 530 F.3d 1368, 1375
n.11 (11th Cir. 2008), for the proposition that a prisoner’s unexhausted § 1983 claim may be
dismissed with prejudice in certain circumstances, including where, as in this case, there is
evidence that administrative remedies may no longer be available to exhaust.1 Nonetheless, a
review of the relevant caselaw indicates that because dismissal for failure to exhaust administrative
remedies is not a determination on the merits, it is more common practice for a district court to
dismiss such claims without prejudice.

1

The Court notes, however, that the Bryant panel explicitly stated that they were deciding the case before
it, which was a dismissal without prejudice rather than with. The footnote cited by the Report and
Recommendation supports the contention that the Eleventh Circuit has not held that a dismissal cannot be
with prejudice, though it did not explicitly hold as much.

Case 1:19-cv-23822-JEM Document 36 Entered on FLSD Docket 01/08/2021 Page 2 of 2

After careful consideration, it is hereby:
ADJUDGED that United States Magistrate Judge Reid’s Report and Recommendation,
[ECF No. 35] is AFFIRMED and ADOPTED in part. Accordingly, it is:
ADJUDGED that
1.

Defendants’ Motion to Dismiss, [ECF No. 33], is GRANTED.

2.

Plaintiff’s pro se complaint, [ECF No. 1], is DISMISSED without prejudice.

3.

This case is CLOSED, and all pending motions are DENIED as MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this 8th day of January, 2021.
____________________________________
JOSE E. MARTINEZ
UNITED STATES DISTRICT JUDGE
Copies provided to:
Magistrate Judge Reid
All Counsel of Record
Dymar Gomez, pro se

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