Paskel v. Woodall

Filing 28

ORDER granting 23 Motion to Dismiss; adopting Report and Recommendations re 26 Report and Recommendations. Signed by District Judge Halil S. Ozerden on 3/23/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
TRAVIS MCCLOUD PASKEL

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v.
RONALD WOODALL

PLAINTIFF
Civil No. 1:15cv323-HSO-JCG
DEFENDANT

ORDER ADOPTING MAGISTRATE JUDGE’S [26] REPORT AND
RECOMMENDATION AND DISMISSING CASE WITHOUT PREJUDICE
This matter comes before the Court on the Report and Recommendation [26] of
United States Magistrate Judge John C. Gargiulo, entered in this case on November
10, 2016, and the Motion to Dismiss for Failure to Exhaust Available Administrative
Remedies [23] filed by Defendant Ronald Woodall on September 29, 2016. Based upon
his review of Defendant’s Motion to Dismiss [23], the pleadings, and relevant legal
authority, the Magistrate Judge recommended that Defendant’s Motion to Dismiss [23]
be granted and that this case be dismissed without prejudice for Plaintiff’s failure to
exhaust his available administrative remedies. R. & R. [26] at 6. For the reasons
that follow, the Court finds that the Report and Recommendation [26] should adopted
in its entirety as the finding of this Court, that Defendant’s Motion to Dismiss [23]
should be granted, and that this case should be dismissed without prejudice.
I. BACKGROUND
Plaintiff Travis McCloud Paskel (“Plaintiff”) filed a pro se Complaint [1] in this
Court on September 28, 2015, asserting claims pursuant to 42 U.S.C. § 1983 against
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Defendant Ronald Woodall (“Dr. Woodall” or “Defendant”). Compl. [1] at 1. In the
Complaint, Plaintiff admitted that he had not completed the Administrative Remedy
Program (“ARP”) regarding the claims presented in his Complaint. Id. at 3.
On September 29, 2016, Defendant filed a Motion to Dismiss for Failure to
Exhaust Administrative Remedies [23]. Plaintiff has not responded to Defendant’s
Motion to Dismiss [23]. On October 17, 2016, the Magistrate Judge entered an Order
to Show Cause [24] requiring Plaintiff to file a response to the Motion to Dismiss [23]
by November 7, 2016, “or otherwise show good cause why the claims against Dr.
Woodall should not be dismissed.” Order [24] at 1. Plaintiff was specifically warned
that “[f]ailure to comply with this Order subjects this case to dismissal without further
notice to Plaintiff.” Id. Plaintiff did not respond to the Order to Show Cause [24].
On November 10, 2016, the Magistrate Judge entered his Report and
Recommendation [26], recommending that Defendant’s Motion to Dismiss [23] be
granted and that this case be dismissed without prejudice for Plaintiff’s failure to
exhaust his available administrative remedies. R. & R. [26] at 6. Any objection to
the Magistrate Judge’s Report and Recommendation [26] was due within fourteen (14)
days of service, or no later than November 28, 2016. L.U. Civ. R. 72(a)(3). To date,
Plaintiff has not filed any objection to the Magistrate Judge’s Report and
Recommendation [26].
II. DISCUSSION
Where no party has objected to the Magistrate Judge’s Report and
Recommendation, the Court need not conduct a de novo review of it.

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28 U.S.C. '

636(b)(1) (“a judge of the court shall make a de novo determination of those portions of
the report or specified proposed findings and recommendations to which objection is
made”).

In such cases, the Court applies the “clearly erroneous, abuse of discretion

and contrary to law” standard of review. United States v. Wilson, 864 F.2d 1219, 1221
(5th Cir. 1989).
Having conducted the required review, the Court concludes that the Magistrate
Judge’s findings are not clearly erroneous, nor are they an abuse of discretion or
contrary to law. The Court will adopt the Magistrate Judge’s Report and
Recommendation [26] as the opinion of this Court and will grant Defendant’s Motion to
Dismiss [23]. This civil action will be dismissed without prejudice for Plaintiff’s
failure to exhaust available administrative remedies.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [26] of United States Magistrate Judge John C. Gargiulo, entered on
November 10, 2016, is ADOPTED in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendant Ronald
Woodall’s Motion to Dismiss for Failure to Exhaust Administrative Remedies [23] is
GRANTED, and civil action is DISMISSED WITHOUT PREJUDICE for Plaintiff’s
failure to exhaust available administrative remedies. A separate final judgment will
be entered pursuant to Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 23rd day of March, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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