TIERNEY v. HARRISON ( 2023 )

Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION CHRISTOPHER M. TIERNEY, D.O.C.#R56554, Plaintiff, v. 4:21cv174–WS/MAF SERGEANT HUNTER HARRISON and OFFICER MONTEROUS PRESHA, Defendant. ORDER ADOPTING THE MAGISTRATE JUDGE’S THIRD REPORT AND RECOMMENDATION Before the court is the magistrate judge’s third report and recommendation (ECF No. 71) entered on March 1, 2023. The magistrate judge recommends that Defendant Monterous Presha’s motion for summary judgment be denied based on Presha’s waiver of the exhaustion defense. Presha has filed objections (ECF No. 72) to the report and recommendation. The undersigned has reviewed the record in light of Presha’s objections and has determined that the report and recommendation is due to be adopted. Under controlling Eleventh Circuit law, specifically Bryant v. Rich, 530 F.3d 1368, Page 2 of 2 1374–75 (11th Cir. 2008) and Brooks v. Warden, 706 F. App’x 965, 968 (11th Cir. 2017), Presha forfeited the exhaustion defense by failing to first raise it in his motion dismiss. Accordingly, it is ORDERED: 1. The magistrate judge’s third report and recommendation (ECF No. 71) is ADOPTED and incorporated by reference in this order. 2. Defendant Presha’s motion for summary judgment (ECF No. 60) is DENIED. 3. The clerk shall return the case to the magistrate judge for further proceedings. DONE AND ORDERED this 23rd day of March , 2023. s/ William Stafford WILLIAM STAFFORD SENIOR UNITED STATES DISTRICT JUDGE