Opinion
CIVIL ACTION NO. 98-0885-P-L
September 6, 2000
JUDGEMENT
In accordance with the Order entered this date, it is ORDERED, ADJUDGED and DECREED that the decision of the Commissioner of Social Security denying plaintiff benefits is hereby AFFIRMED and that this action is DISMISSED.
ORDER MODIFYING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Presently pending before this court is Plaintiff's Objection to the Report and Recommendation of the Magistrate Judge (doc. 17), with defendant's Reply thereto (doc. 20). On May 15, 2000, the Magistrate Judge recommended, under 28 U.S.C. § 636(b)(1)(B), that the decision of the Commissioner to deny plaintiff's claim for disability insurance benefits be affirmed (doc. 16). Plaintiff's Objection was not timely filed.
The MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT, attached to the Report and recommendation (see doc. 16, p. 18), clearly and distinctly sets out that a party who objects to the recommendation or-anything in it "must, within ten days of the date of service . . ., file specific written objections with the clerk of court," and failure to do so bars a de novo determination by this court. Id. ¶ 1; see 28 U.S.C. § 636(b)(I)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc) SD ALA LR 72.4(a)(e).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
The service date of the Report and Recommendation is May 15, 2000. Any objection to the Report and Recommendation, to be timely filed, needed to be filed on or before Friday, June 2, 2000 (computation pursuant to Fed.R.Civ.P. 6(a), excepting Monday, May 29, 2000 — Memorial Day, plus three days for mailing). Plaintiffs counsel did not file objections until June 15, 2000, almost two full weeks beyond the deadline. Plaintiffs counsel did not move for an extension of time within which to file objections, nor did he request leave to file the objections late. Because plaintiff's objection was not timely filed, the filing is disregarded and plaintiff is barred from a de novo determination by this court of the issues covered in the Report and Recommendation. See Nettles, 677 F.2d at 410.
Thus, after due and proper consideration of all portions of this file deemed relevant to the issues raised, the Report and Recommendation of the Magistrate Judge is adopted as modified as the opinion of this court. The modification is as follows.
1. At page 1, ¶ 2, line 2, following "U.S.C. § 636(b)(1)(B)[,]" the balance of the paragraph is omitted and replaced with — Oral argument was heard in this matter on March 3, 2000, before the undersigned. Upon consideration of the entire record, it is recommended that the decision of the Commissioner be affirmed.
With this modification and after due and proper consideration of all pleadings in this file, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED as the opinion of this court, that the decision of the Commissioner be AFFIRMED, and that this action be DISMISSED