DUE v. SAAD (2019)

In these consolidated cases, federal prisoner Randall David Due appeals the district court's order adopting the magistrate judge's recommendation to dismiss Due's 28 U.S.C § 2241 (2012) petition seeking to challenge his convictions, as well as its orders denying Due's motions seeking reconsideration and clarification of the dismissal order. Due has also filed several motions with this court, including motions for Respondent to be held in contempt of court and to compel the conduct of Respondent. We affirm.

The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2012). The magistrate judge recommended that relief be denied and advised Due that failure to file timely objections identifying the portions of the recommendation to which objections are made would waive appellate review of a district court order based upon the recommendation. Despite this warning, Due failed to file specific objections to the magistrate judge's dispositive recommendation.

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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Due has waived appellate review of the district court's order adopting the magistrate judge's recommendation to dismiss his § 2241 petition by failing to file specific objections to the magistrate judge's dispositive recommendations after receiving proper notice. We thus affirm the district court's order dismissing the § 2241 petition.

Because Due's subsequently filed motions seeking reconsideration of the dismissal order were filed within 28 days of that order, the district court correctly reviewed those motions pursuant to Fed. R. Civ. P. 59(e). See Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 411 (4th Cir. 2010) (“A Rule 59(e) motion is discretionary [and] ․ need not be granted unless the district court finds that there has been an intervening change of controlling law, that new evidence has become available, or that there is a need to correct a clear error or prevent manifest injustice.”). We have reviewed the court's orders denying Due's postjudgment motions and discern no error. Accordingly, we affirm those orders for the reasons stated by the district court. See Due v. Saad, No. 3:18-cv-00029 (N.D.W. Va. Jan. 15, 2019 & Feb. 4, 2019). We grant Due's applications for leave to proceed in forma pauperis, but deny all pending motions in these appeals. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.