PEAKE v. UNITED STATES (2021)

Stephon Bernard Peake appeals the denial of his motions to appoint counsel, the district court's order accepting the recommendation of the magistrate judge and dismissing Peake's claims under the Federal Tort Claims Act,^* (“FTCA”) for lack of subject matter jurisdiction and failure to state a claim, and the district court's order denying Peake's Fed. R. Civ. P. 59(e) motion. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that relief be denied and advised Peake that failure to file timely, specific objections to this recommendation could waive appellate review of a district court order based upon the 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 of the consequences of noncompliance. Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Although Peake received proper notice and filed timely objections to the magistrate judge's recommendation, he has waived appellate review of the denial of his claims regarding outgoing mail, access to institutional forms, and medical care because the objections were not specific to the particularized legal recommendations made by the magistrate judge on those claims. See Martin, 858 F.3d at 245 (holding that, “to preserve for appeal an issue in a magistrate judge's report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection” (internal quotation marks omitted)).

Although Peake filed specific objections to his FTCA claim regarding the failure to protect, on appeal, we confine our review to the issues raised in the informal brief. See 4th Cir. R. 34(b). Because Peake's informal brief does not challenge the basis for the district court's disposition of his failure to protect claim, he has forfeited appellate review of the court's order. See Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit rules, our review is limited to issues preserved in that brief.”).

Finally, regarding the denial of Peake's motions for the appointment of counsel, we have reviewed the record and find no abuse of discretion. See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987) (stating standard of review).

Accordingly, we affirm. 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

FOOTNOTES

FOOTNOTE.   28 U.S.C. §§ 1346, 2671-2680.

PER CURIAM:

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