Summary
finding that the exigent circumstances alleged in the three-strike Plaintiff's Complaint, which was filed four days after the incident complained of, did not excuse his clear failure to exhaust administrative remedies
Summary of this case from Scott v. StarkOpinion
CIVIL ACTION NO. 6:14cv822
01-30-2015
ALLEN F. CALTON v. EDGAR BAKER JR.
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT
The Plaintiff Allen Calton, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Calton stated in his complaint that he had not exhausted his administrative remedies prior to bringing suit. The Magistrate Judge issued a Report recommending that the lawsuit be dismissed without prejudice for failure to exhaust administrative remedies. Calton received a copy of this Report but filed no objections thereto; accordingly, he is barred from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings and the Report of the Magistrate Judge. Upon such review, the Court has determined that the Report of the Magistrate Judge is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243 (1989) (where no objections to a Magistrate Judge's Report are filed, the standard of review is "clearly erroneous, abuse of discretion and contrary to law.") It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 7) is hereby ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby DENIED.
It is SO ORDERED.
SIGNED this 30th day of January, 2015.
/s/_________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE