IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

ANTONIO ANDERSON,

Plaintiff,

v. Case No. 1:23-cv-262-AW-HTC

KYLE LAWSON, JASON PERDUE, and COLIN WOODLE,

Defendants.

_______________________________/ FINAL ORDER Antonio Anderson, the pro se prisoner plaintiff, sued three correctional officers. Anderson alleges the officers violated his Eighth Amendment rights when they used excessive force or failed to intervene. ECF No. 1. Defendants filed a summary-judgment motion raising, among other things, PLRA exhaustion. The magistrate issued a report and recommendation concluding the case should be dismissed for failure to exhaust and, alternatively, on the merits. ECF No. 41. Anderson has filed no objection to the report and recommendation. Having carefully considered the matter, I agree dismissal is appropriate based on failure to exhaust. Exhaustion is a matter in abatement. Bryant v. Rich,

(11th Cir. 2008). In general, it is best raised in a motion to dismiss, and if raised in a motion for summary judgment, it should be treated as if raised in a motion to dismiss.

. I will thus treat the defense as though Defendants raised it in a motion to dismiss. The dismissal will be without prejudice, and I do not reach the merits.

I now adopt the Part I of the report and recommendation (and all discussion of exhaustion) and incorporate it into this order. Although Defendants are not entitled to summary judgment (there is no decision here on the merits), they are

entitled to dismissal. The motion for summary judgment (ECF No. 34) (treated as a motion to dismiss) is GRANTED. The clerk will enter a judgment that says, “Plaintiff’s claims are dismissed without prejudice for lack of PLRA exhaustion.” The clerk will then close the file.

SO ORDERED on March 18, 2025. s/ Allen Winsor United States District Judge