Daniel Draper v. Ms. Barnes ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6105
DANIEL DRAPER,
Plaintiff - Appellant,
v.
MS. BARNES, Warden; DR. ONAHA, Medical Doctor; MRS. RAMSEY, Medical
Nurse,
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina, at Beaufort.
Timothy M. Cain, District Judge. (9:21-cv-00185-TMC)
Submitted: April 14, 2022 Decided: April 19, 2022
Before DIAZ and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Daniel Draper, Appellant Pro Se. Beth Drake, Acting United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Draper appeals the district court’s order dismissing without prejudice his
action filed under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), for failure to exhaust administrative remedies. The district court
referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The
magistrate judge recommended dismissing the complaint and advised Draper that failure
to file timely, specific objections to this recommendation could waive appellate review of
a district court order based upon the recommendation. Draper did not file objections, and
the district court accepted the magistrate judge’s recommendation to dismiss the complaint.
The district court subsequently issued a text order stating that it received notification that
the magistrate judge’s report and recommendation was mistakenly mailed to the incorrect
person and correctional facility.
All parties must be served with and given an opportunity to object to the findings
and recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1)(C). Here, the record
establishes that Draper did not receive the magistrate judge’s report and recommendation
before the district court issued its dismissal order, thus depriving Draper of his right to file
objections. Accordingly, we vacate the district court’s dismissal order; grant Draper’s
motion to remand the case to the district court; and remand with instructions to serve the
magistrate judge’s report and recommendation on Draper and to provide him with an
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opportunity to file objections. ∗ We deny Draper’s motions to appoint counsel and to send
an investigator to FCI Bennettsville. 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.
VACATED AND REMANDED
∗
Defendants do not oppose Draper’s motion to remand the case to the district court
to allow Draper the opportunity to file objections to the magistrate judge’s report and
recommendation.
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