UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6812
JAMES A. BUTLER,
Plaintiff – Appellant,
v.
JOHN DOES; JANE DOES, and all AW’s; UNITED STATES OF
AMERICA,
Defendants – Appellees,
and
MOUBARAK, Clinical Director; S. DEWALT, Warden; NURSE
WILLIAMS; ELAYAN, Health Service Administrator; BLOCKER,
MD; SERRANO, Clinical director sued in their individual and
official capacity,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. J. Michelle Childs, District
Judge. (9:08-cv-02760-JMC)
Submitted: November 8, 2011 Decided: December 6, 2011
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
James A. Butler, Appellant Pro Se. Barbara Murcier Bowens,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
James A. Butler appeals the district court’s order
adopting the report and recommendation of the magistrate judge
and denying relief on Butler’s complaint which raised claims
under the Federal Tort Claims Act (“FTCA”), finding that Butler
failed to object to the magistrate judge’s report. Butler also
appeals from the denial of his Fed. R. Civ. P. 59(e) motion for
reconsideration, which asserted that he had timely filed
objections to the magistrate judge’s report. In that order, the
court found that, although Butler timely filed objections, they
were not specific enough to warrant further review.
Initially, the district court referred this case to a
magistrate judge pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West
2006 & Supp. 2011). The magistrate judge recommended that
relief be denied on Butler’s FTCA claims 1 and advised Butler that
failure to file timely objections to this recommendation, which
specifically identified the portions of the Report and
Recommendation to which objections were made, could waive
appellate review of a district court order based upon the
recommendation.
1
The district court had earlier dismissed Butler’s
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), claims for failure to exhaust, and Butler does
not challenge this dismissal on appeal.
3
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). We
find that Butler has waived appellate review by failing to file
specific objections after receiving proper notice. 2 Accordingly,
we modify the denial of Rule 59 relief to show that the motion
is denied because Butler failed to file timely objections, and
we affirm the district court’s orders as modified. 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 AS MODIFIED
2
Although the district court and the parties concluded on
reconsideration that Butler had filed timely objections, they
were mistaken. The document considered as “objections” was
instead an opposition to summary judgment, signed and served
prior to the issuance of the magistrate judge’s report.
4