Barns v. Butch et al

Filing 39

ORDER ADOPTING 37 Report and Recommendations and DENYING 30 Motion for Summary Judgment. The case is DISMISSED without prejudice because the Plaintiff failed to exhaust his administrative remedies. Ordered by Judge Marc Thomas Treadwell on 3/13/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
SHAWN RANDALL BARNS, SR.,
Plaintiff,
v.
Sgt. BUTCH, et al.,
Defendants.

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CIVIL ACTION NO. 5:10-CV-426 (MTT)

ORDER
Before the Court is the Recommendation of Magistrate Judge Charles H. Weigle.
(Doc. 37). The Magistrate Judge recommends denying the Defendants’ Motion for
Summary Judgment (Doc. 30) because there are genuine issues of material fact related
to the Plaintiff’s excessive force claim. However, the Magistrate Judge ultimately
recommends the case be dismissed because the Defendants have shown the Plaintiff
did not exhaust his administrative remedies prior to filing suit.
Neither the Plaintiff nor the Defendants objected to the Recommendation.1 The
Court has reviewed the Recommendation, which is adopted and made the Order of this

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It is possible the Defendant is unaware the Recommendation was filed. The Court mailed a
copy of the Recommendation to the Defendant, but the mailing was subsequently returned to
the Court March 7, 2013 as undeliverable because the Plaintiff had been transferred to a
different prison. (Doc. 38). Significantly, the Court has previously instructed the Plaintiff that it
is his duty, on penalty of dismissal, to report any address change to the Court. (Doc. 6 at 7)
(The Plaintiff “shall at all times keep the clerk of this court … advised of [his] current address”).
The Plaintiff is clearly aware of this duty because he notified the Court of a prior address
change. (Doc. 27). Moreover, it has been nearly a year since the Defendants’ filed their
summary judgment motion. Therefore, the Court enters this Order without reservation.
Nevertheless, the Court has of its own accord located the Plaintiff’s new address, and on
March 11, 2013 the Court mailed a copy of the Recommendation to him. If the Plaintiff moves

Court. The Defendants’ Motion for Summary Judgment is DENIED. However, the case
is DISMISSED without prejudice because the Plaintiff failed to exhaust his
administrative remedies.
SO ORDERED, this 13th day of March, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

for reconsideration of this Order, the Court at that time will entertain any arguments the Plaintiff
could have otherwise made had he filed an Objection.
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