John W. Todd, Plaintiff-appellant, v. Diane B. Gaddy, Medical Director; Eci; Flora B. Boyd,warden; Eci; Parker Evatt, Commissioner, Scdc,defendants-appellees, 955 F.2d 42 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 955 F.2d 42 (4th Cir. 1992) Submitted Dec. 17, 1991. Decided Feb. 25, 1992

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (CA-90-1180-3)

John W. Todd, appellant pro se.

William Henry Davidson, II, Nauful & Ellis, P.A., Robert Eric Petersen, South Carolina Department of Corrections, Columbia, S.C., for appellees.



Before DONALD RUSSELL, and WILKINS, Circuit Judges, BUTZNER, Senior Circuit Judge.



John W. Todd appeals the district court's order dismissing this action brought under 42 U.S.C. § 1983 (1988). Plaintiff's case was referred to a magistrate judge pursuant to 28 U.S.C.A. § 636(b) (1) (B) (West Supp.1991). The magistrate judge recommended that relief be denied and advised Plaintiff 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, Plaintiff failed to object to the magistrate judge's recommendation or to serve his objections on opposing counsel as required by 28 U.S.C. § 636(b) (1) (West Supp.1991).* 

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). See generally Thomas v. Arn, 474 U.S. 140 (1985). Plaintiff has waived appellate review by failing to file and serve objections after receiving proper notice. We accordingly 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.



Todd alleges that he filed objections to the magistrate judge's report and recommendation and that the district court either never received or lost them. The objections he included with his notice of appeal were not dated and contained no evidence of service on opposing counsel or filing in the district court. This Court is not the appropriate forum in which to raise this claim. Under Fed. R. Civ. P. 60(b), a party may move the district court for relief from a final judgment or order based upon any reason justifying relief