Bernard McFadden v. Simon Major

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6280
BERNARD MCFADDEN,
Petitioner – Appellant,
v.
SIMON MAJOR, Director of Sumter-Lee Regional Detention
Center,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. J. Michelle Childs, District
Judge. (3:09-cv-02927-JMC)
Submitted: July 13, 2011 Decided: July 21, 2011
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Bernard McFadden, Appellant Pro Se. James M. Davis, Jr., Joel
Steve Hughes, DAVIDSON & LINDEMANN, PA, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard McFadden, proceeding pro se, appeals the
district court’s order adopting the magistrate judge’s
recommendation and denying relief on his 28 U.S.C.A. § 2241(West 2006 & Supp. 2011) petition. On January 14, 2011, the
magistrate judge issued a report recommending dismissal of
McFadden’s petition and denial of his motion to amend, with
notice that objections were to be filed within fourteen days of
service of the report. On February 7, 2011, the district court
dismissed McFadden’s action, adopting the magistrate judge’s
recommendation and stating that because McFadden failed to
object to the report, he was not entitled to de novo review, an
explanation of the district court’s decision, or the right to
appeal. McFadden timely appealed. On appeal, McFadden
complains that he did not receive the magistrate judge’s report
or the accompanying notice. A litigant who fails to timely
object in writing to a magistrate judge’s proposed findings of
fact and conclusions of law is not entitled to de novo review of
the magistrate judge’s determinations, 28 U.S.C.A.
§ 636(b)(1)(B) (West Supp. 2011), and is barred from contesting
these determinations on appeal. Wright v. Collins, 766 F.2d
841, 845-46 (4th Cir. 1985). However, this waiver is a
prudential rule, not a jurisdictional requirement. United
States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984).
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Consequently, when a litigant is proceeding pro se, this court
has held that he must be given fair notice of the consequences
of failing to object before such a procedural default will
result. Wright, 766 F.2d at 846. When objections to a
magistrate judge’s determinations have been filed, de novo
review by an Article III judge is not only required by statute,
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982), but has
been held indispensable to the constitutionality of the
Magistrate Judge’s Act. United States v. Raddatz, 447 U.S. 667,
681-82 (1980).
The record supports McFadden’s claim that he did not
receive the magistrate judge’s report. On January 18, 2011, the
court received McFadden’s change of address notice. On that
same day, the magistrate judge’s report was mailed to McFadden’s
original address. There is no indication in the record that the
report was forwarded to McFadden’s new address. Because it
appears that McFadden did not receive either the magistrate
judge’s report itself or notice of the consequences of failing
to object to the report, we are constrained to return the case
to the district court so that McFadden can be provided with a
copy of the report and notice of the need to file timely and
specific objections to it.
Accordingly, we vacate the decision of the district
court and remand for further proceedings consistent with this
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opinion. 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.
VACATED AND REMANDED
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