Bernard McFadden v. Simon Major

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cv-02927-JMC. Copies to all parties and the district court/agency. [998636869]. Mailed to: Bernard McFadden. [11-6280]

Appeal: 11-6280

Document: 14

Date Filed: 07/21/2011

Page: 1 of 4

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 07/21/2011

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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).

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Date Filed: 07/21/2011

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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

Appeal: 11-6280

Document: 14

opinion.
legal
before

Date Filed: 07/21/2011

Page: 4 of 4

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