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HARRIS v. NOBLES, 5:13-cv-00203-MP-GRJ. (2014)

Court: District Court, N.D. Florida Number: infdco20140829l90 Visitors: 10
Filed: Aug. 27, 2014
Latest Update: Aug. 27, 2014
Summary: ORDER MAURICE M. PAUL, Senior District Judge. This cause comes on for consideration upon the Magistrate Judge's Report and Recommendation dated July 16, 2014. (Doc. 48). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Plaintiff has filed objections at Doc. 49. I have made a de novo review based on those objections. Having considered the Report and Recom
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ORDER

MAURICE M. PAUL, Senior District Judge.

This cause comes on for consideration upon the Magistrate Judge's Report and Recommendation dated July 16, 2014. (Doc. 48). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Plaintiff has filed objections at Doc. 49. I have made a de novo review based on those objections. Having considered the Report and Recommendation, and the timely filed objections, I have determined that the Report and Recommendation should be adopted. The undersigned, however, writes separately in light of the following considerations.

First, the Magistrate Judge recommends that this matter be dismissed without prejudice for Plaintiff's failure to exhaust his administrative remedies before filing suit, as is required by 42 U.S.C. § 1997e(a). See Doc. 48 at 8. However, the Magistrate Judge also finds that Plaintiff properly exhausted his claim that he should be transferred to a prison closer to his pre-incarceration residence. See id. at 5, 7. The Magistrate Judge concludes that because prisoners do not have a constitutional right to remain in or be transferred to a correctional institution of their own choosing, Plaintiff's transfer request "fails to state a claim upon which relief may be granted under 42 U.S.C. § 1983." Id. at 7. The undersigned agrees and this Order shall separately reflect this reason for the dismissal of this particular claim.

Second, in his objections to the Report and Recommendation, Plaintiff requests leave to amend his complaint. See Doc. 49 at 1. As a general matter, "a district court may properly deny leave to amend the complaint under Rule 15(a) when such amendment would be futile." Hall v. United Ins. Co. Of Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Leave to amend is futile "when the complaint as amended would still be properly dismissed or be immediately subject to summary judgment for the defendant." Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (citing Hall, 367 F.3d at 1263). Here, Plaintiff presents no new facts, arguments, or evidence that would satisfy and/or otherwise remedy the deficiencies noted in the Magistrate Judge's Report and Recommendation. Thus, leave to amend must be denied.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Magistrate Judge's Report and Recommendation (doc. 48) is adopted and incorporated by reference in this order.

2. Defendant's motion to dismiss (doc. 36) is GRANTED.

3. Concerning Plaintiff's claim that he should be transferred to a prison closer to his pre-incarceration residence, this claim is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

4. As to all other claims brought by Plaintiff, this case is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies before filing suit, pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e.

5. Plaintiff's request for leave to file an amended complaint (doc. 49) is DENIED.

DONE AND ORDERED.

Source:  Leagle

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