William Davis, Jr. v. Charlotte Mitchel

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2081
WILLIAM SCOTT DAVIS, JR., as next best friend to his
daughter J.F.D., a minor; J.F.D., a minor,
Plaintiffs - Appellants,
v.
CHARLOTTE MITCHEL, individually and as Guardian Ad Litem of
J.F.D., appointed by the Court; WENDY KIRWAN, individually
and as Supervisor Wake County N.C. Guardian Ad Litem
Program; NAOMIE LIVINGSTON, Individually and as Director
Wake County NC Guardian Ad Litem Program and all staff
individually and in their official capacities as program
managers, superiors and Advocate Attorneys for the Wake
County NC 10th Judicial District Guardian Ad Litem Program;
JANE VOLLAND, Individually, and as Director of the State of
North Carolina Ad Litem; BEVERLY PERDUE, individually and as
Governor of the State of North Carolina; NANCY BERSON,
individually and as Child and Family for UNC School of
Medicine Program on Childhood Trauma and Maltreatment;
ANTHONY HAL MORRIS, Individually and in their official
capacities as Advocate Attorneys for the Wake County
N.C.Guardian Ad Litem Program; RICHARD CROUTHARMEL,
Individually and in their official capacities as Advocate
Attorneys for the Wake County N.C. Guardian Ad Litem
Program; SUSAN VICK, Individually and in their official
capacities as Advocate Attorneys for the Wake County N.C.
Guardian Ad Litem Program; REGINALD O’ROURKE, Individually
and in their official capacities as Advocate Attorneys for
the Wake County N.C. Guardian Ad Litem Program; MELLONNEE
KENNEDY, Individually and in their official capacities as
Advocate Attorneys for the Wake County N.C. Guardian Ad
Litem Program; CARRIE FLATT, Individually and in their
official capacities, as Program Supervisors for the Wake
County, N.C. Guardian Ad Litem Program; FONDA LYONS-COUSAR;
MARGARET HERTZLER, individually and in their official
capacities, as Program Supervisors for the Wake County, N.C.
Guardian Ad Litem Program; CHERYL HANES, Individually and in
their official capacities, as Program Supervisors for the
Wake County, N.C. Guardian Ad Litem Program,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cv-00493-F)
Submitted: January 27, 2014 Decided: February 5, 2014
Before SHEDD, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William Scott Davis, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
William Scott Davis, Jr., appeals the district court’s
order accepting the recommendation of the magistrate judge and
dismissing his complaint as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B) (2012), denying his motion for extension of time
to file objections to the magistrate judge’s recommendation,
denying his remaining motions as moot, and ordering him to show
cause why a pre-filing injunction should not be issued against
him. ∗ The district court referred the case to a magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B) (2012). The magistrate
judge recommended that relief be denied and advised Davis that
failure to file timely objections to this recommendation could
waive appellate review of a district court order based upon it.
The timely filing of specific objections to a
magistrate judge’s recommendation is necessary to preserve
appellate review of the substance of that recommendation when
the parties have been warned of the consequences of
noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th
Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985). Davis
∗
Although the pre-filing injunction determination remains
pending in the district court, it appears that the district
court is “finished” with this case based on its dismissal of
Davis’ claims. See Go Computer, Inc. v. Microsoft Corp., 508
F.3d 170, 176 (4th Cir. 2007). We therefore conclude that the
district court’s order dismissing Davis’ complaint as frivolous
is final and appealable.
3
did not file objections within the prescribed fourteen-day
period. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). On
appeal, he challenges the district court’s denial of his motion
for extension of time to file objections.
We review the denial of a motion to extend a filing
deadline for abuse of discretion. See Thompson v. E.I. DuPont
de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996). A party
seeking an extension after missing a filing deadline must
demonstrate that failure to act within the specified time was
the result of “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
We conclude that the district court did not abuse its discretion
in holding that Davis did not establish excusable neglect for
his failure to timely file objections to the magistrate judge’s
memorandum and recommendation.
Davis therefore has waived appellate review by failing
to timely file objections after receiving proper notice.
Accordingly, we affirm the judgment of the district court. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
4