Opinion
Civil Action No. 9:05-1068-CMC-GCK.
November 28, 2005
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
The Petitioner, Richard Lee Boyd (the "Petitioner" or "Boyd"), is a federal prisoner presently confined in FCI Talladega, in Talladega, Alabama. Proceeding pro se, he has filed a petition seeking habeas corpus relief under Title 28, United States Code, Section 2241, claiming that the Federal Bureau of Prisons ("BOP") has failed to properly credit time spent in state court custody against his federal sentence. By definition, the relief which he seeks must be based upon a finding that he is being illegally detained in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). Pursuant to the provisions of Title 28, United States Code, Sections 636(b)(1)(B) and (C) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this Magistrate Judge is authorized to review prisoner petitions challenging conditions of confinement, which includes the conditions under which a sentence is executed, and submit findings and recommendations to the District Court.
II. THE PRO SE PETITION
The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Hughes v. Rowe, 449 U.S. 5, 9 (1980) ( per curiam); Estelle v. Gamble, 429 U.S. 97 (1976);Haines v. Kerner, 404 U.S. 519 (1972); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978).Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hughes v. Rowe, 449 U.S. at 9. Even under this less stringent standard, however, the pro se Petition is still subject to summary dismissal. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him (Small v. Endicott, 998 F.2d 411 (7th Cir. 1993)), nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
III. BACKGROUND TO THE CASE
On December 2, 1996, Boyd acted in violation of 18 U.S.C. § 922(u) (Theft of Firearms from a Licensed Federal Firearms Dealer), and 18 U.S.C. § 2 (Aiding and Abetting). On January 30, 1997, he was arrested by the Austin, Texas, Police Department pursuant to a state warrant. At about that time, the Austin Police Department received information from the Wichita Falls, Texas, police that Boyd was wanted for burglary of a building and a parole violation. After Boyd's arrest, he was maintained in the primary custody of Texas authorities.
See Affidavit of Sandra Lathrop (hereinafter, "Lathrop Affidavit") at ¶ 3, attached as Exhibit 3 to Respondent's Memorandum in Support of Motion (hereinafter, "Respondents' Memorandum"). [12-1]
See Lathrop Affidavit at ¶ 4, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
See Lathrop Affidavit at ¶ 4, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
On February 13, 1997, Boyd received a "time served" sentence in the Wichita Falls Municipal Court for the offense of Theft Under $50.00. Boyd remained in the primary custody of the State of Texas. On April 29, 1997, Boyd was named in a 4 count federal indictment filed in the Northern District of Texas.
See Lathrop Affidavit at ¶¶ 5-6, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
On June 4, 1997, Boyd's State of Texas parole was revoked and he was given jail credit starting from the date of his arrest on January 30, 1997 on the state charges. Boyd continued to be maintained in the primary custody of the state authorities. On August 21, 1997, Boyd was delivered to federal authorities pursuant to a writ of habeas corpus ad prosequendum for sentencing on the federal charges.
See Lathrop Affidavit at ¶ 7, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
See Lathrop Affidavit at ¶ 8, attached as Exhibit 3 to Respondents' Memorandum. [12-1] A writ of habeas corpus ad prosequendum has no effect on jurisdictional priority. See Thomas v. Whalen, 962 F.2d 358, 361 n. 3 (4th Cir. 1992).
On February 23, 1998, Boyd was sentenced in the United States District Court for the Northern District of Texas to a 120 month term of incarceration. The Court ordered that the federal sentence was to run concurrent to the state custody in Dallas County Jail and/or any Texas Department of Corrections facility or unit. After Boyd was sentenced by the federal court, he was returned to state authorities on March 19, 1998 to complete serving the state parole violation sentence. On August 10, 1999, Boyd was paroled from the state parole violation sentence and placed into the primary custody of the BOP to complete the service of his 120 month federal sentence.
See Lathrop Affidavit at ¶ 9, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
See Lathrop Affidavit at ¶ 10, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
See Lathrop Affidavit at ¶ 11, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
Because the federal sentencing court had ordered the federal sentence to run concurrent with the state sentence, the BOP designated the state facility as the place for service of the federal sentence. See, e.g., Barden v. Keohane, 921 F.2d 476, 480 n. 9 483 (3rd Cir. 1990). This designation allowed the BOP to commence Boyd's federal sentence on February 23, 1998, the day it was imposed. This meant that Boyd began service of his federal sentence while he was completing service of his state sentence.
See Lathrop Affidavit at ¶ 12, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
In addition, the BOP awarded Boyd with 125 days prior custody credit toward his federal sentence. The 125 days consisted of the time period from January 30, 1997 (the day of his arrest) through June 3, 1997, the day before he began serving the state parole violation sentence. This 125 day time period consisted of the entire time Boyd spent in pre-sentence confinement, and Boyd admits that the BOP has granted him credit for the pre-sentence time from January 30, 1997 to June 3, 1997. The award of prior custody credit toward federal terms of imprisonment for time spent in official detention prior to the commencement of a sentence is codified at 18 U.S.C. § 3585(b). Because the only time Boyd spent in pre-sentence detention was from January 30, 1997 through June 3, 1997 (125 days), it follows that he was only awarded that amount of prior custody credit.
See Lathrop Affidavit at ¶ 13, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
See Petitioner's Response [9-1], dated June 10, 2005.
See Lathrop Affidavit at ¶ 16, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
On June 4, 1997, Boyd's sentence for the state parole violation commenced, and between June 4, 1997, through February 22, 1998, Boyd served his state parole violation sentence. The BOP did not credit Boyd with the time served from June 4, 1997, through February 22, 1998 (the state sentence) because it is statutorily prohibited. Furthermore, awarding him with this time period would result in him receiving dual credit. In addition, the sentencing court did not order the BOP to award Boyd with this time period of prior custody credit. The Court ordered the federal sentence to run concurrent to the state sentence. The BOP followed this order and commenced Boyd's federal sentence on the day it was imposed.
See Lathrop Affidavit at ¶ 16, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
See Lathrop Affidavit at ¶¶ 13 and 15, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
See Lathrop Affidavit at ¶¶ 17-18, attached as Exhibit 3 to Respondents' Memorandum. [12-1]
IV. PROCEDURAL HISTORY
The Petitioner filed his Petition for a Writ of Habeas Corpus (the "Petition") on December 21, 2004 against John J. LaManna, the Warden of FCI Edgefield, in the United States District Court for the Northern District of New York, apparently in the District where he was confined at that time. On April 7, 2005, the Honorable David E. Peebles, United States District Judge for the Northern District of New York, entered an Order transferring the case to this District.On April 18, 2005, the undersigned United States Magistrate Judge issued an Order directing the Clerk of Court to add the United States of America as a respondent on the docket sheet of the case, and authorizing service of the Petition on John J. LaManna, the Warden of FCI Edgefield, and the United States of America (collectively, the "Respondents"). [2-1]
On June 9, 2005, the Respondents filed a motion to dismiss and on June 10, 2005 they filed a motion to withdraw their Motion to Dismiss. [5-1; 6-1]. On June 13, 2005, an order was issued by the undersigned which granted Respondents' Motion to Withdraw. [8-1] On June 10, 2005, the Respondents filed their Answer to Petitioner's Petition, alleging that (1) the United States was not a proper party in a habeas petition in that the United States is not the custodian of the prisoner, so the United States should be dismissed as a respondent; (2) the Court lacked subject matter jurisdiction over the Petition because the Petitioner failed to exhaust his administrative remedies; and (3) Petitioner's failure to exhaust administrative remedies constituted a procedural default which barred the Court from exercising jurisdiction because Petitioner's failure to satisfy the procedural rules of the BOP's administrative process constituted a procedural default. Petitioner filed a Reply on June 16, 2005. [9-1]
See Respondent's Answer [7-1] at un-numbered p. 3. The undersigned United States Magistrate Judge would appreciate having the page numbers placed on the all motions and pleadings authored by the United States Attorney for the District of South Carolina.
On August 26, 2005, an Order was issued directing the Respondent to file their dispositive motions within 15 day from the date of the Order. [10-1] On September 9, 2005, the Respondents filed a Motion to Dismiss, alleging that Petitioner's failure to exhaust his administrative remedies mandated dismissal of the Petition. [12-1]
On September 19, 2005, the undersigned issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), notifying Petitioner of the dismissal procedure and the possible consequences if he failed to adequately respond to the Motion to Dismiss within thirty-four (34) days. [13-1] On October 13, 2005, the Petitioner filed his response in opposition to the Respondent's Motion to Dismiss, or in the alternative, for Summary Judgment. [15-1]
V. PETITIONER'S ARGUMENT FOR HABEAS RELIEF
Petitioner's Petition for a Writ of Habeas Corpus asserts the following ground for relief:
Ground one. Federal Bureau of prisons will not honor amended judgment 4/14/98.
Facts: Federal Bureau of Prisons will not grant me 8 months back time credit that was court ordered by Sentencing Judge Joe Kendall on 4/14/98 (Amended Judgment . . . 120 months to run concurrent to the state custody in Dallas County Jail and/or any [Texas Department of Corrections] facility or Unit!)
Back time credit is not being given for the 8 months spent in Dallas County Jail awaiting sentencing, or the allotted amount of good time credit that coincides with this 8 months.
VI. RESPONDENT'S MOTIONS TO DISMISS PURSUANT TO RULES 12(b)(1) AND 12(b)(6)
The Respondents filed a motion to dismiss this matter pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 56 due to the Court's lack of subject matter jurisdiction and because the Petitioner has failed to state a claim for which relief can be granted. Under Rule 12(b)(1), it is well-settled that "[t]he plaintiff has the burden of proving that subject matter jurisdiction exists." Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (the party invoking federal jurisdiction bears the burden of proof). "When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), 'the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'" Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999), quoting Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d at 768. The district court should grant the Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B.F. Perkins Co., 166 F.3d at 647, quoting Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d at 768. Thus, if this court considers Respondent's Motion as one made pursuant to Rule 12(b)(1), the action may be dismissed due to lack of jurisdiction.In the alternative, if the court considers Respondent's Motion as one made pursuant to Rule 12(b)(6), the action may be dismissed if the Petitioner has "fail[ed] to state a claim upon which relief can be granted." When reviewing a Rule 12(b)(6) motion, the factual allegations of the complaint are taken as true. Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969). A motion to dismiss for failure to state a claim upon which relief can be granted is only appropriate where it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A complaint should not be dismissed for insufficiency unless it appears to a certainty that a plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim. 2A James Wm. Moore et al, MOORE'S FEDERAL PRACTICE, ¶ 12.08 at 2271-2274.
VII. SUMMARY JUDGMENT STANDARD
The Respondents' Motion for Summary Judgment is governed by the holding in Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986):
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation there can be no "genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
It is important to add that unsupported speculation by a non-moving party is insufficient to defeat a summary judgment motion. Felty v. Graves-Humphreys Co., 818 F.2d 1126 (4th Cir. 1987). Similarly, genuine disputes of material facts are not demonstrated by the bald statements of a non-moving party in affidavits or depositions. Stone v. University of Md. Medical Sys. Corp., 855 F.2d 167 (4th Cir. 1988).
In deciding whether to grant a motion for summary judgment, all justifiable inferences must be drawn in favor of the non-moving party. Miltier v. Beorn, 896 F.2d 848, 852 (4th Cir. 1990); citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "once a plaintiff 'has named a witness to support [his] claim, summary judgment should not be granted without . . . somehow showing that the named witness' possible testimony raises no genuine issue of material fact.'" Miltier, 896 F.2d at 852, quoting Celotex v. Catrett, 477 U.S. 317, 328 (1986) (White J., concurring). Pursuant to Fed.R.Civ.P. 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
VIII. ANALYSIS A. Introduction
As mentioned above, the Respondents filed a Motion to Dismiss or in the Alternative a Motion for Summary Judgment. [12-1] For the reasons discussed below, this motion should be granted.B. Petitioner's Failure to Exhaust his Administrative Remedies
The BOP's grievance procedure is a three-tiered process whereby an inmate may seek redress for the alleged deprivation of any right. 28 C.F.R. § 542.10. The process begins with the inmate attempting to informally resolve the complaint with a staff member. 28 C.F.R. § 542.13(a). If informal resolution is not successful, the inmate may file a formal written complaint addressed to the Warden. This complaint must be filed within twenty calender days from the date on which the basis for the complaint occurred. 28 C.F.R. § 542.14(a). If the inmate is not satisfied with the Warden's response, that response may be appealed to the Regional Director within twenty calender days of the date the Warden signed the response. An inmate who is not satisfied with the Regional Director's response may submit an appeal to the General Counsel within thirty calender days of the date the Regional Director signed the response. 28 C.F.R. § 542.15(a).
Pursuant to 18 U.S.C. § 3585(b), a defendant convicted of a federal offense has a right to receive credit for certain time spent in official detention before his sentence begins. United States v. Wilson, 503 U.S. 329 (1992). However, the Attorney General, through the BOP, determines the amount of credit to be awarded for time spent in official detention. Id. at 335. Review of the BOP's determination is available initially through the administrative process provided in 28 C.F.R. §§ 542.10-542.16. Id. Judicial review of the BOP's determination is available after administrative remedies have been exhausted.Id. (citations omitted); 28 C.F.R. §§ 542.10-542.16.
Boyd began the BOP's administrative remedy process in 2001, but did not conclude the process. On August 2, 2005, Boyd re-initiated this process, and on August 28, 2005, Boyd responded to the Respondents' Answer by stating in part that he "has re-instituted the Administrative Remedy process. He has thus far received a response at the institutional level denying the jail credits at issue in this petition." Attached to the Reply is the Warden's response to Boyd's Administrative remedy request dated August 12, 2005. It appears that Boyd's attempts to exhaust his administrative remedies have occurred simultaneous with the pursuit of this habeas action. By a pleading filed on October 13, 2005, Boyd informed the court that he expected an answer to the final stage of the administrative process in about forty (40) days. [15-1]
See Petitioner's Reply [11-1] to Government's Answer at ¶ 1.
As a threshold matter, it is well settled that federal prisoners must exhaust their administrative remedies prior to filing Section 2241 petitioners. See, e.g., Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001);United States v. Woods, 888 F.2d 653, 653 (10th Cir. 1989);Del Raine v. Carlson, 826 F.2d 698 (7th Cir. 1987); Kyle v. Hanberry, 677 F.2d 1386 (11th Cir. 1982); Little v. Hopkins, 638 F.2d 953 (6th Cir. 1981); United States ex rel. Sanders v. Arnold, 535 F.2d 848 (3rd Cir. 1976); Williams v. United States, 431 F.2d 873 (5th Cir. 1970). Failure to exhaust may only be excused upon a showing of cause and prejudice. Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634-35 (2d Cir. 2001) ("the interests of judicial economy and accuracy are served by requiring that, absent a showing of cause and prejudice, appeals proceed in the first instance through the federal agency review process."). Any arguments not advanced to each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002).
Boyd began the process of exhausting his administrative remedies in 2001, but failed to completely exhaust his remedies. He re-initiated this process on August 2, 2005. Boyd claims that he had been advised by the staff at FCI-Edgefield that he would not succeed in obtaining a remedy through the administrative process, thereby implying that the pursuit of such remedies would be futile. However, Boyd's argument at this time as to futility begs the question why he failed to pursue his remedies after he initiated the process in 2001, and Boyd has failed to advance any arguments as to the reason he failed to exhaust. For example, the court is without knowledge as to whether Boyd was told in 2001, at FCI-Edgefield, that exhaustion would be futile. The prisoner cannot abandon the process before completion and claim that he exhausted his remedies or that it is futile for him to do so because his grievance is now time-barred under the regulations. See Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999). Thus, Boyd's assertion that any further attempts to rectify his situation through the BOP's Administrative Remedy process is an "exercise in futility" appears to the court as a conclusion without any reasons to support it.
See Affidavit of Roy Lathrop (hereinafter, "Roy Lathrop Affidavit") at ¶ 1, attached as Exhibit 1 to Respondent's Memorandum.
See Boyd's Opposition [15-1] at pp. 4-5.
Thus, it appears that Boyd's claim is procedurally defaulted because he failed to pursue his 2001 claim through the administrative process. Claims that are not exhausted are procedurally defaulted and cannot be reviewed on the merits.Crosby v. Warden, Roxbury Correctional Inst., 110 Fed.Appx. 343, 2004 WL 2294665 * 1 (4th Cir. Oct. 8, 2004) (unpublished opinion), citing Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (state prisoner bringing § 2241 petition must exhaust state and administrative remedies)).
Exhaustion of administrative remedies requires completion of four steps: (1) informal resolution; (2) administrative remedy request; (3) an appeal to the Regional Director; and (4) an appeal to the General Counsel. 28 C.F.R. §§ 542.14 to 542.15. In the case at bar, Boyd completed one step of this process prior to filing suit, and thus his failure to exhaust his administrative remedies is a procedural default. See Moscato v. B.O.P., 98 F.3d 757, 760 (3d Cir. 1996) (A prisoner's "failure to satisfy the procedural rules of the Bureau's administrative process constitutes a procedural default.")
Indeed, Boyd has not shown that administrative remedies are unavailable, nor has he shown that the BOP procedures are wholly inappropriate to the relief sought. To the contrary, BOP regulations establish procedures designed to resolve Boyd's complaint, and specifically to resolve his complaint. If the BOP has erroneously determined Boyd's credits, it has the authority to correct that error and should be permitted the opportunity to do so. See Smith v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991) (an administrative agency should be given the opportunity to correct its own error before an aggrieved party seeks judicial intervention).
Here, Boyd offers no reason for his default, but for his conclusory argument that he had been advised that it would be futile. Assuming that Boyd had been so advised, he nonetheless should have finished pursuing his administrative remedies prior to filing his habeas petition. Thus, the Respondent is entitled to dismissal.
In conclusion, Boyd failed to exhaust his administrative remedies prior to filing this habeas action, and has not shown good cause for failing to do so. Therefore the Respondents are entitled to dismissal of the habeas petition.
RECOMMENDATION
Based upon the foregoing, the Respondents' Motion to Dismiss [12-1] should be granted.
Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" The Serious Consequences of a Failure to Do So
The parties are hereby notified that any objections to the attached Report and Recommendation (or Order and Recommendation) must be filed within ten (10) days of its service. 28 U.S.C. § 636 and Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. Fed.R.Civ.P. 6. Based thereon, this Report and Recommendation, any objections thereto, and the case file will be delivered to a United States District Judge fourteen (14) days after this Report and Recommendation is filed. Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142 F.R.D. 91, 94 n. 3, (S.D.N.Y. 1992). A magistrate judge makes only a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v. Weber, 423 U.S. 261, 270-271 (1976); and Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993).During the period for filing objections, but not thereafter, a party must file with the Clerk of Court specific, written objections to the Report and Recommendation, if he or she wishes the United States District Judge to consider any objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. See Keeler v. Pea, 782 F. Supp. 42, 43-44 (D.S.C. 1992); andOliverson v. West Valley City, 875 F. Supp. 1465, 1467 (D. Utah 1995). Failure to file specific, written objections shall constitute a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir.) 1984, cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841, 845-847 nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's Report and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991). See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir. 1985) (party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). InHoward, supra, the Court stated that general, non-specific objections are not sufficient:
A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief simply objecting to the district court's determination without explaining the source of the error.Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court:
Just as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for review. * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing a [magistrate judge's] report.See also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989) ("no de novo review if objections are untimely or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984) ("plaintiff's objections lacked the specificity to trigger de novo review").
This notice, hereby, apprises the parties of the consequences of a failure to file specific, written objections. See Wright v. Collins, supra; and Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections addressed as follows:
Larry W. Propes, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402