Krieg v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Eric Krieg
v.
FCI Berlin, Warden
Case No. 21-cv-680-SE
O R D E R
On February 16, 2023, Magistrate Judge Andrea K. Johnstone
issued a Report and Recommendation (“R&R”) on the pending
motions in this case. See doc. no. 15. The magistrate judge
concluded that the plaintiff, Eric Krieg, had failed to exhaust
his administrative remedies and recommended that the undersigned
grant the warden’s motion for summary judgment and deny Krieg’s
motion for summary judgment.
On March 9, 2023, Krieg filed a “Motion to Put Case in
Abeyance.” Doc. no. 16. In his filing, Krieg represents that
this case is similar to another case in this district in which
the court issued a ruling adverse to him. See Krieg v. Warden,
FCI Berlin, Case No. 22-cv-105-SM. In that case, the court
granted the defendant’s motion for summary judgment, concluding,
as the magistrate judge did here, that Krieg failed to exhaust
his administrative remedies. Krieg v. Warden, FCI Berlin, No.
22-cv-105-SM, 2022 WL 4121422 (D.N.H. Sept. 9, 2022). Krieg
states that he has appealed the court’s order granting the
defendant’s motion for summary judgment in that case and his
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appeal, if successful, would affect the magistrate judge’s
recommendation in this case. Therefore, he requests that the
court stay this case pending the outcome of his appeal.
Whether the court construes Krieg’s filing as a motion or
an objection to the R&R, the court declines Krieg’s request to
stay the case.1 For the reasons stated in the R&R, Krieg did not
exhaust his administrative remedies and, therefore, the warden
is entitled to judgment. Thus, after due consideration of
Krieg’s motion (doc. no. 16), I herewith approve the Report and
Recommendation of Magistrate Judge Andrea K. Johnstone dated
February 16, 2023 (doc. no. 15), grant the warden’s motion for
summary judgment (doc. no. 11), and deny Krieg’s motion for
summary judgment (doc. no. 12).
“[O]nly those issues fairly raised by the objections to the
magistrate’s report are subject to review in the district court
and those not preserved by such objection are precluded on
appeal.” Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010) (quotation omitted); see United States
v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986) (after proper
notice, failure to file a specific objection to magistrate’s
1 The court notes that Krieg states in his motion that he
“has filed a timely motion for an extension for filing his
objections.” Doc. no. 16 at 1. The court has received no such
motion. As explained below, however, the court construes Krieg’s
filing as an objection so that he preserves his appellate
rights.
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report will waive the right to appeal). To preserve Krieg’s
appellate rights, the court construes document no. 16 as an
objection to the R&R, rather than a motion to stay.
This action is dismissed in its entirety. The clerk is
directed to enter judgment and close this case.
SO ORDERED.
____________________________
Samantha D. Elliott
United States District Judge
Date: March 15, 2023
cc: Eric Krieg, pro se
Seth Aframe, AUSA
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