United States District Court, S.D. Mississippi, Northern Division
RICKY WAYNE TOLBERT, JR. PLAINTIFF
LIEUTENANT UNKNOWN MARTINEZ; et al. DEFENDANTS
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
AND RECOMMENDATION AND GRANTING MOTION FOR SUMMARY
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
cause comes before the Court on the  Report and
Recommendation of United States Magistrate Judge Linda R.
Anderson, entered in this cause on January 24, 2019. The
defendants in this prisoner civil rights case filed a 
Motion to Dismiss or, in the Alternative, for Summary
Judgment arguing that the plaintiff, Ricky Wayne Tolbert,
Jr., failed to exhaust available administrative remedies
before filing his Bivens action. Magistrate Judge
Anderson determined that Tolbert had failed to exhaust his
claims through the four-step Bureau of Prisons
(“BOP”) administrative remedy process before
filing this lawsuit. Judge Anderson therefore recommends that
summary judgment be entered in Defendants' favor and that
Tolbert's claims be dismissed. Tolbert filed an 
Objection to Judge Anderson's Report and Recommendation.
that files a timely objection is entitled to a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
specific objection is made. United States v.
Raddatz, 447 U.S. 667, 673 (1980); 28 U.S.C. §
636(b)(1). The objections must specifically identify those
findings or recommendations to which objections are being
made. The district court need not consider frivolous,
conclusive, or general objections. Battle v. U.S. Parole
Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). Moreover,
where the objections are repetitive of the arguments already
made to the magistrate judge and the district court finds no
error, the court need not make new findings or reiterate the
findings of the magistrate judge. Hernandez v.
Livingston, 495 Fed.Appx. 414, 416 (5th Cir. 2012);
Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir.
Objection does not raise any new arguments. He does not
challenge Magistrate Judge Anderson's conclusion that he
failed to exhaust administrative remedies. Rather, he
reasserts that he did not need to exhaust administrative
remedies because his complaint alleges a life-threatening
situation that states an arguable Eighth Amendment Claim. To
be clear, Tolbert does not assert or otherwise articulate
that the administrative remedy process was unavailable to
See Ross v. Blake, 136 S.Ct. 1850, 1858-60 (2016);
Hinton v. Martin, 742 Fed.Appx. 14, 15 (5th Cir.
2018). His arguments regarding the merits of his Eighth
Amendment claim need not be considered because he has failed
to exhaust available administrative remedies.
Court has conducted a de novo review of
Tolbert's objections to the magistrate judge's
findings, the record in this case, and relevant law. For the
reasons stated in Magistrate Judge Anderson's Report and
Recommendation, the defendants' Motion to Dismiss or, in
the Alternative, for Summary Judgment will be granted and
Tolbert's claims will be dismissed for failure to exhaust
administrative remedies. However, such a dismissal should be
without prejudice rather than with prejudice. See Taylor
v. Jones, 749 Fed.Appx. 305, 305 (5th Cir. 2019);
Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir.
IS THEREFORE ORDERED AND ADJUDGED that the 
Report and Recommendation of United States Magistrate Judge
Linda R. Anderson, entered in this cause on January 24, 2019,
should be, and the same hereby is, adopted as the finding of
this Court. Except that Plaintiff's claims will be
dismissed without prejudice for failure to exhaust
administrative remedies. Plaintiff Ricky Wayne Tolbert,
Jr.'s  Objections are OVERRULED.
IS FURTHER ORDERED AND ADJUDGED that the
defendants'  Motion to Dismiss or, in the
Alternative, for Summary Judgment - which this Court
construes as a motion for summary judgment - is
GRANTED. The plaintiff's claims brought
pursuant to 42 U.S.C. § 1983 are DISMISSED
without prejudice for failure to exhaust
ORDERED AND ADJUDGED.
 Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388
 Tolbert makes several bald assertions
about the “futility” of completing the
administrative process, but he does not even begin to explain
how or why it would be futile to attempt ...