Gillilan v. King et al

Filing 17

ORDER: To the extent the 15 Report and Recommendation recommends granting the Defendants Motion to Dismiss and dismissing the Plaintiffs case, the Recommendation is adopted and made the order of this Court. However, the dismissal will be without prejudice. Ordered by Judge Marc Thomas Treadwell on 10/7/2011. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GREGORY LINSTON GILLILAN,

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Plaintiff,
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v.
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SHENECA KING, et al.,
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Defendants.
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_________________________________ )

CIVIL ACTION NO. 5:11-CV-96 (MTT)

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge Charles H. Weigle. (Doc. 15). The Magistrate Judge recommends
granting Defendant Sheneca King’s Motion to Dismiss because the Plaintiff failed to
exhaust his administrative remedies prior to filing suit, as required under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a). The Plaintiff did not respond to the
Defendant’s Motion to Dismiss, and therefore the Defendant’s claim that the Plaintiff
failed to exhaust his administrative remedies is uncontested.
The Plaintiff has been given every opportunity to respond to the Motion, and was,
on numerous occasions, ordered to show cause for his failure to respond to various
court orders or face dismissal pursuant to Rule 41(b). To date, no response has been
filed by the Plaintiff. Because of the Plaintiff’s failure to prosecute this action, the
Magistrate Judge recommends that the action be dismissed with prejudice.
Although the Court agrees that the Plaintiff’s case should be dismissed, the Court
concludes that the Plaintiff’s case should be dismissed without prejudice, rather than
with prejudice, as the Magistrate Judge recommended. “A dismissal with prejudice,

whether on motion or sua sponte, is an extreme sanction that may be properly imposed
only when … the district court specifically finds that lesser sanctions would not suffice.”
Betty K Agencies, LTD. v. M/V Monada, 432 F.3d 1333, 1337-38 (11th Cir. 2005)
(internal quotation marks and citation omitted). Here, the Court is not convinced that
the lesser sanction of dismissal without prejudice would not suffice. Accordingly, to the
extent the Recommendation recommends granting the Defendant’s Motion to Dismiss
and dismissing the Plaintiff’s case, the Recommendation is adopted and made the order
of this Court. However, the dismissal will be without prejudice.
SO ORDERED, this 7th day of October, 2011.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT