United States District Court, D. South Carolina, Aiken Division
James B. Curry, #186737, Plaintiff,
United States Supreme Court; Scott S. Harris, Clerk of Court for the Supreme Court of the United States, Defendants.
F. Anderson, Jr. Columbia, South Carolina United States
B. Curry (“Plaintiff”), proceeding pro se and
in forma pauperis, filed this action against the
United States Supreme Court and Scott S. Harris, Clerk of
Court for the United States Supreme Court (collectively
“Defendants”) alleging a violation of his
constitutional rights. ECF No. 1.
Magistrate Judge assigned to this action prepared a
thorough Report and opined that this Court should dismiss the
complaint in this case without prejudice and without issuance
and service of process because Defendants are protected by
judicial or quasi-judicial immunity. ECF No. 8. Objections to
the Report were due on August 29, 2016; however, no
objections were filed. ECF Nos. 8-11. On November 9, 2016,
this Court issued an order adopting the Report, as modified.
ECF No. 12.
December 22, 2016, a notice of appeal was docketed. ECF No.
15. Due to the fact that Plaintiff did not file a motion for
reconsideration nor notify this Court of his failure to
receive the Report prior to his notice of appeal, this Court
was unable to address the issue and awaited the Fourth
Circuit's order and mandate. On May 4, 2017, the Fourth
Circuit issued an opinion; however, Plaintiff filed a
petition for rehearing and subsequent filings so the mandate
was not issued until July 18, 2017. ECF Nos. 24, 25; Docket
No. 16-7764, Appellate ECF Nos. 21-33.
appeal, Plaintiff argued that this Court violated his
“right to object to the report and
recommendation.” ECF No. 15. In essence, Plaintiff
asserts that he did not receive the Report and, thus, was not
given an opportunity to object to it. Plaintiff appears to
take issue with the statement made in this Court's order
ruling upon the Report, which stated, “The parties were
advised of their right to object to the Report, which was
entered on the docket on August 12, 2016. ECF Nos. 8, 9. The
Magistrate Judge gave Plaintiff until August 29, 2016, to
file objections. Id. However, no objections were
filed to the Report.” ECF No. 12 at 2. The Court takes
this opportunity to clarify that the language “[t]he
parties were advised” is the standard language used in
its orders to reflect that the deadline to make objections
has been noted on the docket, as well as attached to the
order, the Fourth Circuit stated that it could not
“conclusively determine whether [Plaintiff] received a
copy of the [Report].” Thus, it vacated this
Court's decision and remanded the case for this Court to
make the determination in the first instance. The Fourth
Circuit instructed that, should this Court find
Plaintiff's claim credible, “it should provide him
with a copy of the [Report] and afford him an opportunity to
object.” ECF No. 24 at 2.
Court has reviewed Plaintiff's informal brief filed in
the Fourth Circuit, which states he was not advised of his
right to object to the Report and contains a printout
allegedly stating that Plaintiff did not receive mail during
the months of July, August, September, October, or November
2016. Docket No. 16-7764, Appellate ECF No. 11. The Court
takes judicial notice of appropriate materials. The docket in
this case reflects that the Report, with the objection
deadline, was mailed on August 12, 2016. ECF Nos. 8-9.
this Court determines it could be possible that the Report
was not received by Plaintiff and, therefore, out of an
abundance of caution, this Court hereby allows Plaintiff an
opportunity to receive and object to the Report within
fourteen (14) days after service of the Report. 28 U.S.C
§ 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R.
Civ. P. (6)(a), (d).
parties may file specific written objections to the Report by
addressing specific portions of the Report to which the
objections are made and the basis for such objections with
the Clerk. “[I]n the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead must ‘only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.'” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th
Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's
note). Specific written objections must be filed by the time
period provided and failure to timely file specific written
objections to the Report will result in waiver of the right
to appeal from a judgment of this Court based upon such
Report. See 28 U.S.C. § 636(b)(1); Thomas
v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
Clerk is directed to mail a copy of the Report, with the
objection notice, and this order to Petitioner forthwith.
 The Magistrate Judge's review is
made in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02 (D.S.C.). The Magistrate Judge makes only a
recommendation to this Court. The recommendation has no
presumptive weight, and the responsibility to make a final