Opinion
Case No. 8:05-cv-2208-T-24-EAJ.
February 5, 2007
ORDER
This cause comes before the Court for consideration of Respondent's Refiled Motion to Dismiss and/or for Summary Judgment (Doc. No. 33), Petitioner's Cross-Motion for Summary Judgment and Opposition to Respondent's Motion to Dismiss and/or for Summary Judgment (Doc. No. 37), and Respondent's Opposition to Petitioner's Cross-Motion for Summary Judgment (Doc. No. 43.) These motions were considered by the United States Magistrate Judge. Magistrate Judge Jenkins held a hearing on December 11, 2006 (Doc. No. 45). Thereafter, Magistrate Judge Jenkins filed her Report and Recommendation, recommending that Respondent's Refiled Motion to Dismiss be granted, that the petition be dismissed without prejudice for failure to exhaust intramilitary remedies, and that the summary judgment motions be denied as moot. (Doc. No. 51.) All parties were furnished copies of the Report and Recommendation on December 22, 2006, and were afforded the opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1). Objections to the Magistrate's Report were filed by Petitioner on December 24, 2006. (Doc. No. 53.) Respondent filed a Response to Petitioner's Objections on January 8, 2007. (Doc. No. 60.)
Upon consideration of the Report and Recommendation, Petitioner's Objections, and Respondent's Response to the Objections, and upon this Court's independent examination of the file, it is determined that the Report and Recommendation should be adopted.
Accordingly, it is now ORDERED AND ADJUDGED that
(1) The Magistrate Judge's Report and Recommendation (Doc. No. 51) is adopted and incorporated by reference in this Order of the Court;
(2) Respondent's Refiled Motion to Dismiss (Doc. No. 33) is GRANTED;
(3) The Petition is DISMISSED WITHOUT PREJUDICE for failure to exhaust intramilitary remedies; and
(3) Respondent's Motion for Summary Judgment (Doc. No. 33) and Petitioner's Cross-Motion for Summary Judgment (Doc. No. 37) are DENIED AS MOOT.DONE AND ORDERED at Tampa, Florida.