Simko v. McGuire et al

Filing 30

ORDER granting 17 defendants' motion to dismiss case, adopting Report and Recommendations 25. Signed by Judge Scott O. Wright on 2-14-06. (Morse, Judy)

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Simko v. McGuire et al Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION MEL VIN SIMKO, Register No. 1035464, Plaintiff, v. JILL McGUIRE, et al., Defendants. ) ) ) ) ) ) ) ) ) ORDER No. 04-4148-CV-C-SOW On December 6, 2005, the United States Magistrate Judge recommended dismissing plaintiff' s claims. The parties were advised they could file written exceptions to the recommendation, pursuant to 28 U.S.C. 636(b)(1)(C). No exceptions have been filed, even though plaintiff requested and was granted an extension of time in which to do so. A review of the record convinces the court that the recommendation of the Magistrate Judge is correct and should be adopted. Inmates who file an appeal with the United States Court of Appeals for the Eighth Cir cuit are required to pay the full $255. 00 appellate filing fee, regardless of the outcome of the appeal. Henderson v. Norris, 129 F. 3d 481, 484 (8th Cir. 1997). The filing of a notice of appeal is considered a consent by the inmate to allow prison officials to deduct an initial partial appellate filing fee and later installments from the prisoner's account. IT IS, THEREFORE, ORDERED that the report and recommendation of the Magistr ate Judge is adopted [25]. It is further ORDERED that defendants' motion of June 14, 2005, for dismissal is granted, as follows: 1) plaintiff's claims against defendant McGuire are dismissed for failure to state a claim against her under 42 U.S.C. 1983; 2) plaintiff's claims against defendants Reynolds and Oxford in their official capacities are dismissed because the claims are barred by Eleventh Amendment immunity; and Case 2:04-cv-04148-SOW Document 30 Filed 02/14/2006 Page 1 of 2 3) plaintiff's remaining claims against defendants Reynolds and Oxford in their personal capacities are dismissed, without prejudice to refiling, for failure to exhaust his administrative remedies prior to filing suit, pursuant to 42 U.S.C. 1997e. / s/ Scott O. Wright SCOTT O. WRIGHT Senior United States District Judge Dated: 2-14-06 2 Case 2:04-cv-04148-SOW Document 30 Filed 02/14/2006 Page 2 of 2

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