Bernard McFadden v. Simon Major, No. 11-6280 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6280 BERNARD MCFADDEN, Petitioner Appellant, v. SIMON MAJOR, Center, Director of Sumter-Lee Regional Detention Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. J. Michelle Childs, District Judge. (3:09-cv-02927-JMC) Submitted: July 13, 2011 Decided: July 21, 2011 Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Bernard McFadden, Appellant Pro Se. James M. Davis, Jr., Joel Steve Hughes, DAVIDSON & LINDEMANN, PA, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bernard district McFadden, court s recommendation proceeding order denying and adopting relief the on (West 2006 & Supp. 2011) petition. magistrate judge issued McFadden s petition and a of se, appeals the magistrate 28 his judge s § U.S.C.A. 2241 On January 14, 2011, the report denial pro recommending his motion dismissal to amend, of with notice that objections were to be filed within fourteen days of service of the report. dismissed McFadden s recommendation and On February 7, 2011, the district court action, stating adopting that the because magistrate McFadden judge s failed to object to the report, he was not entitled to de novo review, an explanation of the district court s decision, or the right to appeal. McFadden timely appealed. On appeal, McFadden complains that he did not receive the magistrate judge s report or the accompanying notice. A litigant who fails to timely object in writing to a magistrate judge s proposed findings of fact and conclusions of law is not entitled to de novo review of the magistrate judge s determinations, 28 U.S.C.A. § 636(b)(1)(B) (West Supp. 2011), and is barred from contesting these determinations on appeal. Wright v. Collins, 766 F.2d 841, However, 845-46 (4th Cir. prudential rule, States Schronce, v. not 1985). a 727 jurisdictional F.2d 2 91, this waiver requirement. 93-94 (4th Cir. is a United 1984). Consequently, when a litigant is proceeding pro se, this court has held that he must be given fair notice of the consequences of failing result. to object Wright, magistrate judge s before 766 F.2d such at a procedural 846. determinations When have default objections been filed, de will to a novo review by an Article III judge is not only required by statute, Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982), but has been held indispensable Magistrate Judge s Act. to the constitutionality of the United States v. Raddatz, 447 U.S. 667, 681-82 (1980). The record supports McFadden s claim that he did not receive the magistrate judge s report. On January 18, 2011, the court received McFadden s change of address notice. On that same day, the magistrate judge s report was mailed to McFadden s original address. report appears was There is no indication in the record that the forwarded that McFadden to McFadden s did not new receive address. either the Because it magistrate judge s report itself or notice of the consequences of failing to object to the report, we are constrained to return the case to the district court so that McFadden can be provided with a copy of the report and notice of the need to file timely and specific objections to it. Accordingly, we vacate the decision of the district court and remand for further proceedings consistent with this 3 opinion. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. VACATED AND REMANDED 4
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