Lisenby v. Thomas et al

Filing 21

ORDER affirming 10 Report and Recommendation, dismissing defendant The Parole Board, and dismissing individual-capacity claims against defendants Thomas and Patton. Signed by Honorable David C Norton on 9/8/2014.(eric, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Billy Lisenby, Jr., #200273,

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Plaintiff,
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vs.
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Kela E. Thomas, Director; Larry Ray
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Patton, Jr., Director of Parole Board Support;)
and The Parole Board,
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Defendants.
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____________________________________)

C/A No. 5:14-cv-2893 DCN KDW
ORDER

The above referenced case is before this court upon the magistrate judge's recommendation that defendant The Parole Board be dismissed, and that individual capacity claims
against defendants Thomas and Patton be dismissed.
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 No objections
1

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

have been filed to the magistrate judge’s report and recommendation.
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, defendant The Parole Board is DISMISSED, and the
individual capacity claims against defendants Thomas and Patton are DISMISSED. Defendants Thomas and Patton are to respond to § 1983 and ADA claims seeking declaratory and
prospective injunctive relief.
AND IT IS SO ORDERED.

David C. Norton
United States District Judge
September 8, 2014
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.

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.