Lisenby v. Lear et al

Filing 73

ORDER denying 38 Motion for Writ of Mandamus; denying 40 Motion for Preliminary Injunction; affirming 49 Report and Recommendation. Signed by Honorable David C Norton on 5/10/2013.(eric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Billy Lee Lisenby, Jr., #200273, a/k/a
Malik Al-Shabazz,

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Plaintiff,
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vs.
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Chief of Police Randall Lear, Sgt. Kenneth )
Lear, PFC Jeff D. Outlaw,
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Defendants.
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C/A No. 5:09-cv-410 DCN KDW

ORDER

The above referenced case is before this court upon the magistrate judge's recommendation that plaintiff’s Motion for Injunctive Relief (ECF No. 40) and Motion for a Writ of
Mandamus (ECF No. 38) be denied.
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 v. Schronce, 727 F.2d 91 (4th Cir. 1984),
cert. denied, 467 U.S. 1208 (1984 ).1
1

Objections to the magistrate judge’s report and

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

recommendation were timely filed on October 25, 2012.
A de novo review of the record indicates that the magistrate judge's report accurately
summarizes this case and the applicable law. Accordingly, the magistrate judge’s Report and
Recommendation is AFFIRMED, and plaintiff’s Motion for Preliminary Injunction (ECF No.
40) and Motion for a Writ of Mandamus (ECF No. 38) are DENIED.
AND IT IS SO ORDERED.

David C. Norton
United States District Judge
May 10, 2013
Charleston, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by Rules
3 and 4 of the Federal Rules of Appellate Procedure

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.