PHILLIPS v. DEAL et al
ORDER ADOPTING 67 Report and Recommendations; GRANTING 53 Motion to Dismiss; and GRANTING 54 Motion to Dismiss Complaint. Plaintiff's claims against Defendant Gramiak, Johnson and Temple are DISMISSED without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/2/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF GEORGIA
JAMES MANUEL PHILLIPS, JR.,
NATHAN DEAL, et al.,
Case No: 5:15-cv-249 (MTT-CHW)
United States Magistrate Judge Charles Weigle recommends granting Defendant
Gramiak’s and Defendant Johnson’s joint motion to dismiss (Doc. 53) and Defendant
Temple’s motion to dismiss (Doc. 54). By these motions, the Defendants seek
dismissal of all of Phillips’s claims against them in this action. Doc. 67 at 2. The
Defendants’ motions were filed September 19, 2016. See Docs. 53, 54. After Phillips
failed to respond to the motions for a three-month period, Magistrate Judge Weigle
entered an order informing Phillips of his obligation to respond and directing him to
respond within fourteen days. Doc. 65. After receiving no response for an additional
three-month period, the Magistrate Judge entered his thorough Recommendation as to
the Defendants’ asserted grounds for dismissal. Doc. 67.
Magistrate Judge Weigle recommends dismissing Phillips’s Eighth Amendment
environmental tobacco smoke (ETS) claim against Gramiak and Johnson because
Phillips failed to properly exhaust his administrative remedies. Id. at 9-11. Similarly,
Magistrate Judge Weigle recommends dismissing Phillips’s retaliatory transfer claim
against Temple for failure to exhaust and dismissing Phillips’s access-to-court claim
against Temple because it was filed outside of the statute of limitations. Id. at 11-13.
Phillips has not objected to the Recommendation, and the time for doing so has expired.
The Court has carefully reviewed the Recommendation and accepts and adopts
the findings, conclusions, and recommendations of the Magistrate Judge. The
Recommendation (Doc. 67) is ADOPTED as the order of the Court. The Defendants’
motions to dismiss (Docs. 53, 54) are GRANTED. Phillips’s claims against Defendants
Gramiak, Johnson, and Temple are accordingly DISMISSED without prejudice.
SO ORDERED, this 2nd day of May.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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