CLARK v. IVEY et al

Filing 28

ORDER DISMISSING without prejudice Plaintiff's complaint. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 2/15/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JUSTIN CLARK,
Plaintiff,
v.
GEORGE IVEY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:16-CV-95(MTT)

ORDER
The Magistrate Judge correctly determined that the Plaintiff’s complaint failed to
state a claim for which relief can be granted against Defendant Ivey for deliberate
indifference to medical needs and that the Plaintiff failed to exhaust his administrative
remedies for his other claims. Doc. 26. The Magistrate Judge also recommended that
the Court decline to exercise supplemental jurisdiction over the Plaintiff’s state law
claims. Id. at 10. Although the Court agreed with the Magistrate Judge’s conclusions,
the Court provided the Plaintiff an opportunity to amend his complaint to correct any
pleading deficiencies. Doc. 27. The Plaintiff has not amended his complaint.
Accordingly, for the reasons stated in the Magistrate Judge’s Report and
Recommendation (Doc. 26), the Plaintiff’s complaint is DISMISSED without prejudice.1

1

The applicable two-year statute of limitations appears to bar the Plaintiff from refiling his federal claims.
Therefore, the dismissal is, in effect, likely with prejudice as to those claims. Justice v. United States, 6
F.3d 1474, 1482 n.15 (11th Cir. 1993); Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981). That is the
reason the Court alerted the Plaintiff to his complaint’s deficiencies and afforded him the opportunity to
amend. Doc. 27. Since the Plaintiff has not amended his complaint, dismissal with prejudice is
appropriate. See Friedlander v. Nims, 755 F.2d 810, 813-14 (11th Cir. 1985) (holding that dismissal with
prejudice was not an abuse of discretion when the court gave the plaintiff a chance to amend).

SO ORDERED, this 15th day of February, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

-2-