USCA4 Appeal: 21-6720 Doc: 15 Filed: 01/24/2022 Pg: 1 of 3

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6720

ZANNIE JAY LOTHARP, Plaintiff - Appellant, v. OFFICE OF THE UNITED STATES ATTORNEY, Defendant - Appellee.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:20-cv-01062-LCB-LPA)

Submitted: January 20, 2022 Decided: January 24, 2022

Before WILKINSON, DIAZ, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Zannie Jay Lotharp, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Zannie Jay Lotharp appeals the district court’s order adopting the magistrate judge’s recommendation and dismissing Lotharp’s civil action. In its order, the court stated that Lotharp had filed no objections to the recommendation within the time period prescribed by 28 U.S.C. § 636. On appeal, Lotharp claims that he did not receive the recommendation, making it impossible to object. He notes that the recommendation was returned to the clerk as undeliverable and that, pursuant to M.D.N.C. R. 11.1(b), he had 63 days to notify the court of his change in address.

A party who fails to object in writing to a magistrate judge’s proposed findings of fact and conclusions of law is not entitled to de novo review of the magistrate judge’s determinations by the district court and is barred from contesting those determinations on appeal. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see 28 U.S.C. § 636(b)(1).

However, the waiver of appellate rights for failing to object is a prudential rule, not a jurisdictional requirement. Thomas v. Arn, 474 U.S. 140, 154 (1985). When a litigant is proceeding pro se, he must be given fair notice of the consequences of failing to object before a procedural default will apply. Wright, 766 F.2d at 846-47.

The record shows that Lotharp never received a copy of the recommendation before the district court dismissed his case. Accordingly, we vacate the decision of the district court and remand with directions to provide Lotharp with a copy of the recommendation and notice of the consequences of failing to object. We deny as moot Lotharp’s motion to stay and remand.

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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