Branham v. Bryant et al

Filing 82

ORDER RULING ON 68 REPORT AND RECOMMENDATION. The court declines to adopt the Report and Recommendation at this time in light of the filing of an amended answer. The defendants' motion for summary judgment 33 is dismissed without prejudice. The motion to amend 71 is granted. Signed by Honorable Joseph F Anderson, Jr on 7/24/2012. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

James M. Branham,
Plaintiff,
vs.
Sheriff Bruce M. Bryant, sued in his
individual capacity; John A. Clark,
Defendants.
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C/A: 1:11-1246-JFA-SVH

ORDER

After the Magistrate Judge filed a Report and Recommendation suggesting that some,
but not all, of the claims asserted in this action be dismissed, the defendants moved for leave
to file an amended answer raising the failure of the plaintiff to exhaust administrative
remedies as a bar to this action. Plaintiff, through newly-obtained counsel, opposes the
motion to amend. Rule 15 of the Federal Rules of Civil Procedure provides that leave to
amend shall be “freely granted when justice so requires.” In this case, the court will exercise
its discretion and allow the amendment so that the threshold question of exhaustion of the
plaintiff’s administrative remedies may be reviewed in this case.
Accordingly, the motion to amend (ECF No. 71) is granted, and this action is hereby
remanded to the Magistrate Judge for further processing on the basis of the amended answer.
The court declines to adopt the Report and Recommendation at this time in light of the filing
of an amended answer. In addition, the defendants’ motion for summary judgment (ECF No.
33) is dismissed without prejudice.

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IT IS SO ORDERED.

July 24, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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