McGuinness v. Missouri Department of Corrections et al

Filing 42

ORDER adopting Report and Recommendations re 38 Report and Recommendations.; granting 9 motion to dismiss case; denying 11 motion to dismiss case; granting 30 motion to dismiss case; granting 33 motion to dismiss case. Signed by District Judge Scott O. Wright on 3-24-2009. (Morse, Judy)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION MATTHEW J. McGUINNESS, Register No. 1051477, Plaintiff, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ORDER No. 08-4162-CV-C-SOW On January 26, 2009, United States Magistrate Judge William A. Knox recommended dismissing plaintiff's claims for failure to exhaust administrative remedies as required by 42 U.S.C. 1997e. The parties were advised they could file written exceptions to the recommendation, pursuant to 28 U.S.C. 636(b)(1)(C). The court has conducted a de novo review of the record, including plaintiff's suggestions in opposition to defendants' motions to dismiss, treated as exceptions, filed on January 29, 2009; and the reply suggestions in support of dismissal filed by defendant Correctional Medical Services on January 30, 2009. The issues raised in plaintiff's exceptions were adequately addressed in the report and recommendation. The court is persuaded 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 Circuit are required to pay the full $455.00 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 January 26, 2009, is adopted. [38] It is further ORDERED that defendants' motions seeking dismissal of plaintiff's claims for failure to exhaust administrative remedies are granted and plaintiff's claims are dismissed, without prejudice, pursuant to 42 U.S.C. 1997e. [9, 30, 33] It is further ORDERED that the motion of defendant Correctional Medical Services to dismiss for failure to state a claim is denied, without prejudice. [11] /s/Scott O. Wright SCOTT O. WRIGHT Senior United States District Judge Dated: March 23, 2009 2

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