Jerry Burkes, Plaintiff-appellant, v. Patrick G. Jacobs, Defendant-appellee, 944 F.2d 900 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 944 F.2d 900 (4th Cir. 1991) Submitted June 13, 1991. Decided Sept. 24, 1991

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden, II, Chief District Judge. (CA-90-1009)

Jerry Burkes, appellant pro se.

S.D.W. Va.

AFFIRMED.

Before MURNAGHAN and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:


Jerry Burkes appeals the district court's order dismissing this 42 U.S.C. § 1983 action. Appellant's action was referred to a magistrate judge pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate judge recommended that relief be denied and advised appellant that the failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, appellant failed to timely object to the magistrate's recommendation.

After the period in which to file objections had expired, and after the district court had adopted the magistrate judge's recommendation, Burkes filed a request to file objections out of time along with his objections. The only excuse provided by Burkes for his late filing is that he was in transit between various institutions for approximately three weeks. Burkes did not state that he was unaware of the report or of the requirement that objections be filed within thirteen days. See Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988) (no abuse of discretion where motion for extension was filed after expiration of objection period and stated only that counsel had been out of town, not that he was unaware of the report or of the filing deadline). Further, Burkes did not assert that he had not received the report or that he did not have access to the mails during the period in which he was in transit. The district court denied Burkes's request to file his objections out of time.

This Court has held that the timely filing of objections to a magistrate judge'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, 846 (4th Cir. 1985) (quoting Carr v. Hutto, 737 F.2d 433, 434 (4th Cir. 1984), cert. denied, 474 U.S. 1019 (1985)). See generally United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984). Appellant has waived appellate review by failing to file objections after receiving proper notice. The district court was within its discretion under Fed. R. Civ. P. 6(b) in refusing to grant Burkes's request for enlargement of the period for filing objections. See Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983).

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.