UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6608
MILTON TOWNSEND,
Plaintiff - Appellant,
versus
W. P. ROGERS, Regional Director; MARCIA SEAY,
Institutional Ombudsman; SUSAN CARSON,
Operations Officer; ALTON BASKERVILLE, Warden;
SHEILA HUGHES, Assistant Grievance Ombudsman,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-03-781)
Submitted: June 9, 2004 Decided: July 7, 2004
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
Remanded by unpublished per curiam opinion.
Milton Townsend, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Milton Townsend, a Virginia inmate, appeals the district
court’s order adopting the magistrate judge’s report and
recommendation and dismissing Townsend’s complaint under 42 U.S.C.
§ 1983 (2000) for failure to object to the magistrate judge’s
report and recommendation. We remand for further factual findings.
On appeal, Townsend alleges that he never received the
February 27, 2004 report and recommendation. A party who fails to
object in writing within ten days 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 and is barred from
contesting these determinations on appeal. Wright v. Collins, 766
F.2d 841, 845-46 (4th Cir. 1985). However, the waiver of appellate
rights for failing to object to a magistrate judge’s report and
recommendation is not a jurisdictional requirement. United
States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984).
Consequently, when a litigant is proceeding pro se, he must be
given fair notice of the consequences of failing to object before
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), it is indispensable to the constitutionality of the
Magistrate Judge’s Act. See United States v. Raddatz, 447 U.S.
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667, 681-82 (1980). If Townsend’s contentions are true, he did not
receive any notice of the consequences of failing to object to the
magistrate judge’s report and may have been prevented from timely
filing objections preserving appellate review.
Accordingly, because the record on appeal is insufficient
to determine whether Townsend actually received a copy of the
magistrate judge’s report and recommendation, we remand to the
district court for further proceedings to determine whether
Townsend received adequate notice of the magistrate judge’s report
and recommendation. 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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