Opinion
5:24-CV-267-FL
06-24-2024
DARRELL HUBBARD, Plaintiff, v. GOLDSBORO POLICE DEPARTMENT, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Plaintiff's application to proceed in forma pauperis, [DE-3], and for frivolity review of the amended complaint, [DE-6-8], pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff also filed a motion for leave to file a USB drive. [DE-7]. Plaintiff has demonstrated sufficient evidence of inability to pay the required court costs and the application is allowed. However, because at this stage the court must focus on the sufficiency of the allegations in the complaint, the motion for leave to file a USB drive is denied, and it is recommended that the complaint be dismissed for failure to state a claim.
The Amended Complaint was incorrectly scanned at [DE-6], resulting in missing pages. The complete Amended Complaint is found at [DE-6-8].
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition.... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden., Md. House of Corn, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . . Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. FACTUAL BACKGROUND
Plaintiff Darrell Hubbard was the victim of an assault and alleges that Defendants, the Goldsboro Police Department (“GPD”) and individual members of the GPD, the Wayne County Prosecutor's Office (“WCPO”) and an individual prosecutor, and three private citizens who are members of the Masonic Lodge, conspired to cover up the assault by conducting a deficient investigation and undercharging the alleged perpetrator. Am. Compl. [DE-6-8] & Attachments [DE-6-1 to -6-7]. Hubbard asserts claims under 42 U.S.C. § 1983 for violation of his Sixth and Fourteenth Amendment rights under the Constitution and under 42 U.S.C. § 1985(3) for conspiracy to violate his civil rights, as well as state law claims for negligence and intentional infliction of emotional distress. Hubbard seeks a declaration that his constitutional rights were violated, removal of the Assistant District Attorney (“ADA”) who prosecuted the alleged assailant, an order requiring the prosecutor and GPD to cure their wrongful conduct, compensatory damages of $3,000,000, and punitive damages.
Hubbard frequented Pier 34 Seafood and Pub (“Pier 34”), a bar and restaurant with a pool table located in Goldsboro, North Carolina. Am. Compl. [DE-6-8] at 7. Pier 34 employed off-duty GPD officers to provide security. Id. Hubbard and Pier 34 owner Marcus Smith were accomplished pool players who initially had a friendly rivalry that later soured as Hubbard continually bested Smith at the pool table. Id.
On Sunday, February 4, 2024 around 10:15 p.m., Hubbard arrived at Pier 34 to play pool, which was his normal routine. Id. at 13. The door was open but only Smith and the bartender, Andrew Nicholson, were present. Id. After Hubbard and Smith played a game, Smith left the room and Nicholson approached Hubbard and began “spewing all kinds of obscene racial comments trying to start an argument.” Id. Hubbard was then struck from behind with a blunt object and fell to the floor striking his right knee and losing consciousness. Id. at 14. Hubbard awoke still on the floor roughly an hour and ten minutes later and found Smith standing nearby. Id. He asked Smith what happened, and Smith responded that Hubbard got into an argument with Nicholson. Id. Hubbard asked Smith if the police had been called and Smith said no. Id. Hubbard insisted Smith call the police and Smith called 911. Id. Hubbard was “bleeding profusely from his ears” but did not recall seeing much blood on the floor so he surmised the crime scene was cleaned while he was unconscious. Id. Hubbard was transported to the hospital by ambulance where he was treated for injuries to his head, ears, and throat. Id. at 14-15. Ultimately, Nicholson was charged with assault with a deadly weapon, but Hubbard believes he was the victim of an attempted murder by Smith. Hubbard alleges that Nicholson, Smith, the GPD, and the WCPO conspired to coverup the crime and protect Smith, which resulted in a deficient investigation and undercharging Nicholson with assault rather than attempted murder. Id. at 33-37.
III. DISCUSSION
A. Unconstitutional Investigation Claims against the GPD and its Individual Members
Hubbard alleges that the GPD's investigation of the assault against him was constitutionally deficient in several ways, including failure to collect evidence, ignoring witness statements, a lack of neutrality, inadequate documentation, tampering with evidence, delay, coercion, selective enforcement, lack of disclosure, conflict of interest, misrepresentation of victim statements, inadequate response to victim needs, complicity in harassment, and misleading prosecutorial entities (Count 1); ignoring the extent of his injuries (Count 4); ignoring inconsistencies in Smith's 911 call (Count 5); investigating the assault weapon (Count 6); investigating the video surveillance evidence (Count 7); investigating Larry Gray (Count 8); failing to provide an investigation report (Count 10); failing to investigate a false imprisonment allegation against Smith by a third party (Counts 11 & 16); Officer Gooding's failure to properly investigate the crime scene (Count 12); Detectives Daniels's and Goins's flawed investigations (Counts 13 & 14); Sergeant Warren's disregard of evidence (Count 15); and violating a duty to conduct a fair and thorough investigation (Count 16). Id. at 41 -43, 58-78, 84-104, 106.
A crime victim like Hubbard generally has no constitutional right to a police investigation. See Tri-State Prop. Rentals, LLC v. Cabell Cnty. Magistrate Ct., No. 3:23-CV-00072, 2023 WL 2960804, at *6 (S.D. W.Va. Mar. 20, 2023) (“[A] crime victim has no constitutional entitlement to any police investigation, much less a thorough or timely one.”) (citing Rossi v. City of Chicago, 790 F.3d 729, 735 (7th Cir. 2015); Smith v. McCarthy, 349 Fed.Appx. 851, 859 (4th Cir. 2009)), report and recommendation adopted, 2023 WL 2957482 (S.D. W.Va. Apr. 14, 2023). “Nor do police officers have an affirmative duty to investigate crimes in a particular manner.” Derrick v. Thomas, No. CV 9:20-3816-MGL-MHC, 2021 WL 10428230, at *3 (D.S.C. Apr. 12, 2021) (citing Gini v. Las Vegas Metro. Police Dep't, 40 F.3d 1041, 1045 (9th Cir. 1994)), report and recommendation adopted, 2023 WL 3061289 (D.S.C. Apr. 24, 2023). An Equal Protection Clause claim may arise from the “selective[] denial[] of [] protective services to certain disfavored minorities.” Trantham v. Henry Cnty. Sheriff's Off, No. 4:1 O-CV-00058, 2011 WL 863498, at *6 (W.D. Va. Mar. 10, 2011) (quoting Roman v. City of Reading, 257 F.Supp.2d 799, 802 (E.D. Pa. 2003)); see DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197 n.3 (1989) (“The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.”). However, Hubbard's allegation that the GPD was biased in favor of Smith because he was a member of the Freemason Society is insufficient to state an Equal Protection claim because the alleged bias is not linked to Hubbard's minority status. Accordingly, Hubbard has failed to state a constitutional claim based on GPD's allegedly deficient investigation.
B. Unconstitutional Prosecution Claims against the Wayne County Prosecutor's Office and ADA Tamer
Hubbard alleges that the WCPO and ADA Tamer violated his Sixth and Fourteenth Amendment rights in prosecuting Nicholson and failing to prosecute Smith in several ways, including ignoring relevant evidence, demonstrating bias, selective prosecution, failure to communicate, misrepresentation of victims statements, withholding incriminating evidence, conflict of interest, improper influence of the GPD, neglecting proper procedure, failure to act, abuse of discretionary power, and lack of diligence (Counts 2 & 18); ignoring the extent of his injuries in charging the crime (Count 4); ignoring inconsistencies in Smith's 911 call (Count 5); failing to pursue a derivative responsibility and collective action case against Smith and Gray (Count 9); failing to provide an investigation report (Count 10); and failing to investigate a false imprisonment allegation against Smith by a third party (Count 11). Am. Compl. [DE-6-8] at 4454, 58-67, 79-93, 107-09. Hubbard seeks to have ADA Tamer removed from the prosecution of Hubbard's alleged assailant and a new prosecutor assigned to the case to determine appropriate charging and prosecutorial decisions. Id. at 51. “[A] private citizen ... has no constitutional right to, or in fact any judicially cognizable interest in, the criminal prosecution or non-prosecution of another person.” Derrick, 2021 WL 10428230, at *3 (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). Therefore, Hubbard has failed to state a cognizable claim that his constitutional rights were violated by the WCPO and ADA Tamer's prosecutorial decisions regarding Nicholson and Smith.
C. Coerced Witness Statement Claim
Hubbard alleges that he was coerced by Detective Daniels to change his original witness statement, which undermined Hubbard's credibility with the prosecutor, impeding his Sixth Amendment right to a fair trial and his Fourteenth Amendment right to be treated fairly under the law (Count 3). Am. Compl. [DE-6-8] at 55-57. The Sixth Amendment “guarantees the rights of criminal defendants,” and Hubbard is not a criminal defendant. Therefore, he cannot state a claim that his constitutional right to a fair trial was violated. Hubbard has also failed to state an Equal Protection claim under the Fourteenth Amendment because there are no facts alleged that would support a claim that Hubbard was treated differently by Detective Daniels because of his protected status as a disfavored minority. See DeShaney, 489 U.S. at 197 n.3. Accordingly, Hubbard has failed to state a claim that his constitutional rights were violated by Detective Daniels.
D. Section 1983 Claims Against Smith
Hubbard alleges (1) that Smith's 911 call violated his civil rights because it gave a misleading or false description of the incident and contained inconsistencies that interfered with the investigation and prosecution (Count 5), and (2) that Smith manipulated and obstructed the GPD's investigation to avoid indictment for assaulting Hubbard and deprived Hubbard of a fair trial (Count 19). Am. Compl. [DE-6-8] at 64-67, 110-11.
Smith is a private individual, and “[w]here a private individual is a defendant in [a] § 1983 action, there must be [a] showing that the private party and the state actor jointly deprived plaintiff of his civil rights.” Clark v. Graham, No. 2:04-CV-1-BO(2), 2004 WL 3327913, at *2 (E.D. N.C. Sept. 27, 2004) (citation omitted), aff'd, 126 Fed.Appx. 112 (4th Cir. 2005). While liability for conspiracy “may be imposed on a private individual or party who acts in concert with the party or parties who are acting under color of law,” Parker v. Grand Hyatt Hotel, 124 F.Supp.2d 79, 88 (D.D.C. 2000), here Hubbard's conclusory allegation that Smith conspired with GPD to cover up the assault and deprive him of “fair and impartial treatment under the law,” Am. Compl. [DE-6-8] at 65, falls short. Furthermore, § 1983 is not itself a source of substantive rights but rather provides a means to vindicate violations of rights under the Constitution and federal law. As explained above, Hubbard has no constitutional right to a police investigation and no judicially cognizable interest in the prosecution of his alleged assailant, and because the Sixth Amendment “guarantees the rights of criminal defendants” and Hubbard is not a criminal defendant, he cannot state a claim that his constitutional right to a fair trial was violated. Accordingly, Hubbard has failed to state a § 1983 claim against Smith.
E. Section 1985 Conspiracy Claim against the GPD, West, Tamer and the WCPO
Hubbard alleges that a secret meeting between Police Chief Mike West and Tamer related to Hubbard's RICO allegations suggests a conspiracy to violate Hubbard's civil rights and to obstruct justice (Counts 16, 17, & 18). Am. Compl. [DE-6-8] at 105. A § 1985 civil conspiracy claims consists of five elements: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy. Thomas v. The Salvation Army S. Territory, 841 F.3d 632, 637 (4th Cir. 2016) (citation omitted).
To state a conspiracy claim, a plaintiff
must allege “concrete facts” showing that defendants entered a conspiracy which deprived the plaintiff of his civil rights. Francis v. Giacomelli, 588 F.3d 186, 19697 (4th Cir. 2009). Courts reject “section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts.” Williams, at *5 (quoting Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995)). The Fourth Circuit has “rarely, if ever, found that a plaintiff has set forth sufficient facts to establish a section 1985 conspiracy.” Simmons, 47 F.3d at 1377. To allege a conspiracy, a party must show that two or more persons acted in concert to commit an unlawful act or to commit a lawful act by unlawful means. See id, at 1376. Further, “a party must show an agreement or meeting of the minds between parties to inflict a wrong or injury upon another that results in damage.” Williams, at *5 (citations omitted). A plaintiff must also show harm resulting from the alleged conspiracy. Id. (citations omitted).Caldwell v. Carroll, No. 5:24-CV-00096-MR, 2024 WL 1979453, at *3 (W.D. N.C. May 2, 2024).
The allegation that West and Tamer conspired to violate Hubbard's civil rights is conclusory, and Hubbard's speculation that the purpose of a secret meeting between the two was to deprive him of his civil rights falls short of the necessary “concrete facts” to state a § 1985 claim. Furthermore, because Hubbard has no constitutional right to a police investigation and no judicially cognizable interest in the prosecution of his alleged assailant, he has failed to allege harm resulting from the alleged conspiracy. Finally, there are no allegations from which the court could find that defendants were “motivated by a specific class-based, invidiously discriminatory animus.” Thomas, 841 F.3d at 637. Hubbard only makes generalized, historical allegations that there is systematic injustice against marginalized communities by law enforcement in Wayne County and admits that he has been a “resident of North Carolina for over 50 years without any significant incidents with law enforcement.” Am. Compl. [DE-6-8] at 4-6. Accordingly, Hubbard has failed to state a civil conspiracy claim under § 1985.
F. RICO Claim against the GPD and the WCPO
Hubbard alleges the GPD and the WCPO engaged in evidence tampering, protected individuals from legal repercussions, and conducted biased internal investigations, which constitute an ongoing criminal enterprise involving multiple acts of racketeering in violation of the Racketeering Influenced and Corrupt Organizations Act (Count 16). Am. Compl. [DE-6-8] at 105.
To state a civil RICO claim under § 1962(c), a plaintiff must allege (1) a person, (2) an enterprise, and (3) a pattern (4) of racketeering activity (5) that causes injury to the plaintiffs. Gentile v. Brunswick Cnty. Sheriff's Dep't, No. 7:13-CV-81-FL, 2014 WL 1331159, at *11 (E.D. N.C. Apr. 2, 2014) (citing Sedima v. Imrex Co., 473 U.S. 479, 496 (1985)). A plaintiff must also allege an injury to his or her business or property as a result of such conduct. Id.
RICO “does not cover all instances of wrongdoing. Rather, it is a unique cause of action that is concerned with eradicating organized, long-term, habitual criminal activity.” US Airline Pilots Ass'n v. AWAPP A, LLC, 615 F.3d 312, 317 (4th Cir. 2010) (quoting Gamboa v. Velez, 457 F.3d 703, 705 (7th Cir. 2006)). The penalties authorized under RICO have been described as “drastic,” and serve to underscore that RICO is “primarily designed to provide society with a powerful response to the dangers of organized crime.” Id. (citing H.J Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 233, 245 (1989)).Id.
Hubbard has failed to allege an injury to his business or property that was caused by the alleged racketeering. See Brice v. E. N.C. Woodmen of World Youth Camp Inc. for Woodmen of World/Omaha Woodmen Life Ins. Soc'y, No. 4:04-CV-197-H, 2006 WL 8438415, at *2 (E.D. N.C. Sept. 8, 2006) (“A civil RICO claim is therefore vulnerable to dismissal if it fails to allege either an adequate injury to business or property, or an adequate causal nexus between that injury and the predicate acts of racketeering alleged.”). Accordingly, Hubbard has failed to state a civil RICO claim.
G. First Amendment Claim Against the GPD and the WCPO
Hubbard alleges that his attempts to communicate his grievances to Sergeant Warren and Chief West were ignored and suppressed and he was prevented from speaking out and retaliated against for doing so in violation of his First Amendment rights (Count 16). Am. Compl. [DE-6-8] at 105. Hubbard's allegations undermine any First Amendment claim. The GPD took Hubbard's statement, investigated his assault, and turned the case over to the WCPO. To the extent Hubbard has a First Amendment right to report a crime, see Meyer v. Bd. of Cnty. Comm'rs of Harper Cnty., Okla., 482 F.3d 1232, 1243 (10th Cir. 2007), he did so, and his conclusory allegations that he was retaliated against are insufficient to state a claim. Sergeant Warren's email, cited by Hubbard as evidence of misconduct, simply asks Hubbard to “refrain from the numerous emails and phone calls you are sending Investigator Daniels instructing him on how to investigate this case as it is becoming a hinderance to his work flow.” [DE-6-2] at 10. As explained above, Hubbard has no constitutional right to control or interfere with a police investigation. See Derrick, 2021 WL 10428230, at *3. Accordingly, Hubbard has failed to state a First Amendment claim.
H. Section 1985(3) Claims against Nicholson and Gray
Hubbard alleges that Nicholson and Gray conspired to violate his civil rights, specifically (1) that Nicholson falsely confessed to assaulting him in order to obstruct the investigation and shield Smith and Gray from liability and prosecution, which deprived Hubbard of his right to a fair trial; and (2) that Gray conspired with Smith to fabricate evidence portraying Hubbard as the aggressor in the altercation with Nicholson, which deprived Hubbard of his right to a fair trial (Counts 20 & 21). Am. Compl. [DE-6-8] at 112-14.
Section 1985(3) prohibits “two or more persons” from conspiring “for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ....” 42 U.S.C. § 1985(3). To establish a claim pursuant to 42 U.S.C. § 1985(3), a showing of discriminatory treatment is required. See Benzing v. North Carolina, No. 3:17-CV-619-KDB-DCK, 2020 WL 3439558, at *4 (W.D. N.C. June 23, 2020) (“In order to prove a conspiracy in violation of 42 U.S.C. § 1985(3), a plaintiff must show, among other things, that ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action.'” (quoting Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68 (1993)); Horowitz v. Sherman, No. CV DKC 19-2459, 2020 WL 2319113, at *5-6 (D. Md. May 11, 2020) (“To state a claim under 42 U.S.C. § 1985(3), a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.”) (quoting A Soc y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011)).
The complaint fails to allege facts from which the court could find that Nicholson and Gray were motivated by specific class-based, invidiously discriminatory animus. Hubbard alleges that until the night of the assault, Nicholson “never gave any indication of personal animus” and that the “nonsense racial talk” was simply a distraction. Am. Compl. [DE-6-8] at 8-9. Furthermore, as explained above, the Sixth Amendment “guarantees the rights of criminal defendants,” and Hubbard is not a criminal defendant, so he has no constitutional right to a fair trial as a victim. Accordingly, it is recommended that Plaintiff's claims arising pursuant to 42 U.S.C. § 1985(3) be dismissed.
I. State Law Claims
Hubbard asserts claims for negligence, gross negligence, and intentional infliction of emotional distress against several defendants (Counts 4, 6, 7, and 22). Am. Compl. [DE-6-8] at 58, 68, 72, 122. The court should decline to exercise supplemental jurisdiction over the state law claims, where Plaintiff has failed to state a federal claim and there is no diversity jurisdiction. See 28 U.S.C. § 1367 (providing that a court may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”); Chesapeake Ranch Water Co. v. Bd. of Comm 'rs of Calvert Cnty., 401 F.3d 274, 277 (4th Cir. 2005) (having dismissed federal claims, district court properly declined supplemental jurisdiction of state claims); Shanaghan v. Cahill, 58 F.3d 106,110 (4th Cir. 1995) (recognizing that under § 1367(c), the district courts “enjoy wide latitude in determining whether or not to retain [supplemental] jurisdiction over state claims when all federal claims have been extinguished”) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Accordingly, the state law claims should be dismissed.
IV. CONCLUSION
For the reasons stated herein, the application to proceed in forma pauperis is allowed, the motion for leave to file a USB drive is denied, and it is recommended that the complaint be dismissed for failure to state a claim.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until July 8, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and
Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841,846-47 (4th Cir. 1985).