Ronald Lewis v. Stephen Miller , 459 F. App'x 256 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6435
RONALD WAYNE LEWIS,
Plaintiff - Appellant,
v.
STEPHEN WILEY MILLER, United States Attorney; KEVIN
CHRISTOPHER NUNNALLY, United States Attorney; TANYA HELENA
POWELL, United States Attorney,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:10-cv-00129-JRS)
Submitted: August 29, 2011 Decided: December 23, 2011
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Remanded by unpublished per curiam opinion.
Ronald Wayne Lewis, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Wayne Lewis appeals from the district court’s
order accepting the recommendation of the magistrate judge and
dismissing his civil action. On appeal, Lewis contends that he
did not receive the magistrate judge’s report and recommendation
and therefore did not have the opportunity to file objections.
Lewis also filed in the district court a “notice” stating that
he did not receive the report and recommendation.
The timely filing of objections is necessary to
preserve appellate review of a district court’s order adopting
the recommendation. See Wright v. Collins, 766 F.2d 841 (4th
Cir. 1985). Here, if in fact Lewis did not receive the report
and recommendation, he was thereby prevented from obtaining de
novo review of the recommendation by an Article III judge. See
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
On April 5, 2011, Lewis filed a notice in the district
court stating that he did not receive the report and
recommendation. However, because Lewis had already noted his
appeal, the district court did not have jurisdiction to act on
that notice, which can be construed as a motion for
reconsideration pursuant to Fed. R. Civ. P. 59(e). In light of
Lewis’s contention that he did not receive the report and
recommendation, we remand the case to the district court for it
to construe the April 5, 2011 notice as a Rule 59(e) motion for
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reconsideration. We express no opinion as to whether
reconsideration is warranted. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
REMANDED
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