stating “failure to exhaust . . . warrants dismissal without prejudice, which permits the litigant to refile if he exhausts”
How later courts described this case
- stating “failure to exhaust . . . warrants dismissal without prejudice, which permits the litigant to refile if he exhausts”
- noting summary judgment is “the procedural equivalent of a trial and [] an adjudication of the claim on the merits”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CHERYL DENISE WELCH PLAINTIFF
BROWN, #R7275
V. CIVIL ACTION NO. 3:20-CV-425-KHJ-FKB
RON KING and SHEILA
PARKS DEFENDANTS
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation of United States
Magistrate Judge F. Keith Ball. [29]. The Report recommends the Court grant
Defendants Ron King’s and Sheila Parks’s Motion for Summary Judgment [27] and
dismiss Plaintiff Cheryl Denise Welch Brown’s action. Written objections to the
Report were due by September 23, 2022. The Report notified the parties that failure
to file written objections by that date would bar further appeal in accordance with
28 U.S.C. § 636.
When no party objects to a magistrate judge’s report and recommendation,
the Court need not review it de novo. 28 U.S.C. § 636(b)(1). In such cases, the Court
applies the “clearly erroneous, abuse of discretion and contrary to law” standard of
review. , 864 F.2d 1219, 1221 (5th Cir. 1989) (per curiam).
Brown sued under 28 U.S.C. § 1983, alleging Defendants violated her
constitutional rights by failing to set a parole eligibility date for her. Defendants
moved for summary judgment on several grounds. [27]. Brown did not respond to
the Motion. The Magistrate Judge recommended the Court grant the Motion based
on Brown’s failure to exhaust her administrative remedies and dismiss the case but
did not recommend whether to dismiss the case with or without prejudice.
Defendants moved for summary judgment based on failure to exhaust
administrative remedies, qualified immunity, and sovereign immunity. The
Magistrate’s Report only addresses failure to exhaust, which sufficiently warrants
dismissal of the action. , 814 F. App’x 852, 853 (5th Cir. 2020) (per
curiam) (affirming summary judgment for failure to exhaust administrative
remedies). But granting summary judgment on the immunity claims would bar
Brown from litigating those defenses if she were to properly refile after exhausting
her administrative remedies. , 647 F.3d 188, 194 (5th
Cir. 2011) (noting summary judgment is “the procedural equivalent of a trial and []
an adjudication of the claim on the merits”).
The Court declines to address sovereign immunity and qualified immunity.
The Report’s conclusion as to the failure to exhaust claim is neither clearly
erroneous nor contrary to law. The Court adopts it as its opinion and grants
Defendants’ Motion on that defense. Based on that conclusion, the Court dismisses
the case without prejudice. , 928 F.3d 439, 447 (5th Cir. 2019)
(stating “failure to exhaust . . . warrants dismissal without prejudice, which permits
the litigant to refile if he exhausts”).
For the reasons stated, the Court GRANTS Defendants’ Motion for Summary
Judgment [27] for Brown’s failure to exhaust her administrative remedies and
DISMISSES the Complaint [2] without prejudice.
The Court will issue a separate Final Judgment consistent with this Order.
SO ORDERED AND ADJUDGED, this the 4th day of October, 2022.
s/
UNITED STATES DISTRICT JUDGE