Rice v. LaManna

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Rogers dismissing the case without prejudice and without requiring respondent to file a return. Signed by Judge Patrick Michael Duffy on 3/1/06. (chub, )

Rice v. LaManna

Doc. 8

4:05-cv-03078-PMD

Date Filed 03/01/2006

Entry Number 8

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA James Robert Rice, #10091-056, Petitioner, vs. John J. LaManna, Respondent. ) C.A. #4:05-3078-PMD ) ) ) ) ORDER ) ) ) ) )

The above-captioned case is before this court upon the magistrate judge's recommendation that the case be dismissed. Because petitioner is pro se, this matter was referred to the magistrate judge.1 This Court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States

Pursuant to the provisions of Title 28 United States Code, § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the magistrate judge is authorized to review pretrial matters and submit findings and recommendations to this Court.

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Dockets.Justia.com

4:05-cv-03078-PMD

Date Filed 03/01/2006

Entry Number 8

Page 2 of 3

v. Schronce, 727 F.2d 91 (4th Cir. 1984).2 No objections have been filed to the magistrate judge's report. A review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. For the reasons articulated by the magistrate judge, it is hereby ordered that the petition in the above-captioned case be dismissed without prejudice and without issuance and service of process upon the respondent. ORDERED, that the magistrate judge's report and recommendation is adopted as the order of this Court. AND IT IS SO ORDERED.

Charleston, South Carolina March 1, 2006

In Wright v. Collins, 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant must receive fair notification of the consequences of failure to object to a magistrate judge's report before such a procedural default will result in waiver of the right to appeal. The notice must be 'sufficiently understandable to one in appellant's circumstances fairly to appraise him of what is required.'" Id. at 846. Plaintiff was advised in a clear manner that his objections had to be filed within ten (10) days, and he received notice of the consequences at the appellate level of his failure to object to the magistrate judge's report. 2

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4:05-cv-03078-PMD

Date Filed 03/01/2006

Entry Number 8

Page 3 of 3

NOTICE OF RIGHT TO APPEAL Plaintiff is hereby notified that he has the right to appeal this Order within thirty (30) days from the date hereof pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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