Garcia Jay Wright, Plaintiff-appellant, v. Howard N. Lyles, Warden of Maryland Penitentiary; James N.rollins, Defendants-appellees, 902 F.2d 1567 (4th Cir. 1990)
Annotate this CaseAppeal from the United States District Court for the District of Maryland, at Baltimore. Paul V. Niemeyer, District Judge. (C/A No. 87-1115-PN)
Garcia Jay Wright, appellant pro se.
John Joseph Curran, Jr., Office of the Attorney General of Maryland, Richard M. Kastendieck, Rex Charles Schultz, Ronald Mark Levitan, Baltimore, Md., for appellees.
D. Md.
AFFIRMED.
Before K.K. HALL, PHILLIPS and WILKINS, Circuit Judges.
PER CURIAM:
Garcia Jay Wright appeals the district court's order dismissing his 42 U.S.C. § 1983 action. Wright's action was referred to a magistrate pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate recommended that relief be denied and advised Wright that a failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Wright failed to object to the magistrate's recommendation.
This Court has held that the timely filing of objections to a magistrate's recommendation is necessary to preserve appellate review of the substance of that recommendation where the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984). See Thomas v. Arn, 474 U.S. 140 (1985). Appellant has waived appellate review by failing to file objections after receiving proper notice. Accordingly, we affirm the judgment of the district court.*
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED.
We note that the district court's final order was filed on August 7, 1989, and Wright's notice of appeal was filed on September 18, 1989. Fed. R. App. P. 4(a) (1) requires that notices of appeal be filed within 30 days of the final order. An untimely notice of appeal deprives this Court of jurisdiction. See Browder v. Director, Dep't of Corrections, 434 U.S. 257 (1978). Nonetheless, because the record does not disclose whether Wright submitted his notice of appeal to prison authorities before the end of the 30-day period, see Houston v. Lack, 487 U.S. 266 (1988), it would be necessary to remand this case before determining that this Court is without jurisdiction. Since failure to file objections to the magistrate's report constitutes waiver of appellate review of the substance of that report, we assume for the purposes of this appeal that Wright delivered his notice of appeal to prison officials in timely fashion
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