Childress v. Ainsworth et al

Filing 43

OPINION and Order. Signed by Judge James P. Jones on 5/9/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

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ERIC LEE CHILDRESS,
Plaintiff,
v.
S. AINSWORTH, ET AL.,
Defendants.

Case No. 7:16CV00221
OPINION AND ORDER
By: James P. Jones
United States District Judge

Eric Lee Childress, Pro Se Plaintiff; Rosalie Pemberton Fessier,
Timberlake, Smith, Thomas & Moses, P.C., Staunton, Virginia, for Defendants.
This civil rights action under 42 U.S.C. § 1983 by a Virginia prison inmate
was referred to the magistrate judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C)
for determination of the defendants’ contention that the plaintiff failed to exhaust
his administrative remedies before filing this action.

After conducting an

evidentiary hearing, the magistrate judge filed a Report and Recommendation (the
“Report”) on April 13, 2017. The Report proposes findings of fact and conclusions
of law that the plaintiff did not exhaust administrative remedies under the available
grievance procedure before filing this lawsuit, as required under 42 U.S.C.
§ 1997e(a), and recommends dismissal of his claims for that reason. The parties
were advised of their right to file written objections to the report and

recommendation. The time for so doing has lapsed, and neither party has filed
objections.
I have reviewed the Report and I am satisfied that there is no clear error on
the face of the record. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (“[I]n the absence of a timely filed objection, a district
court need not conduct a de novo review, but instead must ‘only satisfy itself that
there is no clear error on the face of the record in order to accept the
recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Accordingly, the Report is ACCEPTED and the plaintiff’s action will be
DISMISSED for failure to exhaust available administrative remedies as required
under 42 U.S.C. § 1997e(a).
It is so ORDERED.
A separate final judgment will be entered herewith.
ENTER: May 9, 2017
/s/ James P. Jones
United States District Judge

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