Hill v. Pitt & Greene Elec ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EMMA L. HILL,
Plaintiff-Appellant,
v.
PITT & GREENE ELECTRIC
MEMBERSHIP CORPORATION,
Defendant-Appellee,
No. 97-1257
and
CAROLINA POWER AND LIGHT
COMPANY; UNITED STATES
DEPARTMENT OF AGRICULTURE, Rural
Utilities Service; NORTH CAROLINA
RURAL ELECTRIFICATION AUTHORITY,
Defendants.
Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge; Alexander B. Denson,
Magistrate Judge.
(CA-95-35-4-H-1)
Submitted: July 28, 1998
Decided: August 11, 1998
Before MURNAGHAN and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed as modified by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Emma L. Hill, Appellant Pro Se. David Neal Allen, Christopher
Oakes Smythe, PARKER, POE, ADAMS & BERNSTEIN, Charlotte,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Emma Hill appeals from the order of the district court and the final
order of the magistrate judge1 granting the Defendant's (PGEMC)
motion for summary judgment in her 42 U.S.C. § 1981 (1994), 42
U.S.C.A. § 1983 (West 1994 & Supp. 1998), Bivens,2 and state law
claims. We affirm as modified.
Addressing Hill's Bivens claim, we conclude that because Hill
failed to object to the magistrate judge's report and recommendation
to dismiss for insufficient jurisdiction, she has waived appellate
review of this claim. See Wright v. Collins, 766 F.2d 841, 845-46 (4th
Cir. 1985). Accordingly, we affirm the district court's grant of sum-
mary judgment on this claim. Turning to Hill's § 1981 claim, we find
_________________________________________________________________
1 The Defendant, PGEMC, filed a motion for summary judgment which
was referred to a magistrate judge for resolution. The magistrate judge
recommended granting PGEMC's motion on all claims except Hill's
§ 1983 and state trespass claims. The district court accepted this recom-
mendation. Prior to trial, both parties consented to the jurisdiction of a
second magistrate judge under 28 U.S.C.A. § 636(c) (West 1994 & Supp.
1998). This magistrate judge entered summary judgment in favor of
PGEMC on the remaining claims sua sponte.
2 Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics,
403 F.2d 388 (1971).
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that Hill has failed to demonstrate that PGEMC took an easement
across her property without offering to purchase the area at issue on
account of her race. Accordingly, we affirm the district court's grant
of summary judgment as to this claim as well.
Hill's remaining claims were finally decided by the magistrate
judge with consent of the parties. Hill argues that the magistrate judge
was precluded from revisiting these issues under the doctrine of stare
decisis. We disagree. The factual situation at issue does not implicate
the doctrine of stare decisis, but rather the law of the case doctrine.
Unlike res judicata or stare decisis, this doctrine does not involve pre-
clusion after final judgment. Instead, it regulates judicial affairs prior
to the entry of final judgment. See 18 Charles Alan Wright et al.,
Federal Practice and Procedure § 4478 (1981). While courts gener-
ally adhere to this principle and decline to revisit previously decided
issues, the law of the case is only matter of practice and as such does
not limit the power of the court to reopen matters already decided. See
id.; see also CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d
395, 398 n.1 (4th Cir. 1995) (stating that the law of the case doctrine
is "discretionary and not mandatory"); Capital Investors Co. v. Execu-
tors of Morrison's Estate, 584 F.2d 652, 654 (4th Cir. 1978) ("The
principle [of law of the case] is not absolute nor inflexible."). Accord-
ingly, we conclude that the magistrate judge was within his authority
to revisit the § 1983 and state trespass claims.
Addressing Hill's § 1983 claim, we affirm on the reasoning of the
magistrate judge. Turning to the state trespass claim, however, we
conclude that the claim should be dismissed without prejudice to
Hill's filing it in state court. Accordingly, we affirm the magistrate
judge's order disposing of this claim, but modify the order to reflect
a dismissal without prejudice.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED AS MODIFIED
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