Cummings v. Rubenstein

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7648
ROBERT CUMMINGS,
Plaintiff - Appellant,
versus
JAMES RUBENSTEIN, Commissioner of Corrections;
THOMAS MCBRIDE, Warden; JENNIFER BALLARD; TIM
CREASEY, Magistrate; LEE ESTEP; BEVERLY C.
GANDEE,
Defendants - Appellees.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CA-03-2195-5)
Submitted: February 25, 2005 Decided: March 10, 2005
Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert Cummings, Appellant Pro Se. Charles Patrick Houdyschell,
Jr., WEST VIRGINIA DIVISION OF CORRECTIONS, Charleston, West
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Cummings appeals the district court’s order
dismissing without prejudice under 28 U.S.C. § 1915A(b) (2000) his
complaint filed under 42 U.S.C. § 1983 (2000). The district court
referred this case to a magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) (2000). The magistrate judge recommended that
relief be denied and advised Cummings that failure to file timely
objections to this recommendation could waive appellate review of
a district court order based upon the recommendation. Despite this
warning, Cummings failed to specifically object to the magistrate
judge’s recommendations to deny his Eighth Amendment claim and to
dismiss some of the claims raised in the motion to amend for
failure to exhaust administrative remedies.
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 that failure to object will waive appellate review. See
Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also
Thomas v. Arn, 474 U.S. 140 (1985); United States v. One Parcel of
Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) (collecting cases
finding general objection insufficient). Cummings has waived
appellate review of those issues by failing to file specific
objections after receiving proper notice.
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Turning to the only issue preserved for appellate
review,* we have reviewed the record and find no reversible error
in the district court’s dismissal of Cummings’ First Amendment
claim. Accordingly, we affirm for the reasons stated by the
district court. See Cummings v. Rubenstein, No. CA-03-2195-5
(S.D.W. Va. Sept. 30, 2004). 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.
AFFIRMED
*
We note that Cummings failed to challenge in his informal
brief on appeal the basis for the district court’s dismissal of his
due process claims or his retaliation claims. Accordingly, he has
waived appellate review of those issues. 4th Cir. R. 34(b) (“The
Court will limit its review to the issues raised in the informal
brief.”).
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