UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6280

BERNARD MCFADDEN,

 Petitioner – Appellant,

v.

SIMON MAJOR, Director of Sumter-Lee Regional Detention 

Center,

 Respondent - Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. J. Michelle Childs, District 

Judge. (3:09-cv-02927-JMC)

Submitted: July 13, 2011 Decided: July 21, 2011

Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Bernard McFadden, Appellant Pro Se. James M. Davis, Jr., Joel 

Steve Hughes, DAVIDSON & LINDEMANN, PA, Columbia, South 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Bernard McFadden, proceeding pro se, appeals the 

district court’s order adopting the magistrate judge’s 

recommendation and denying relief on his 28 U.S.C.A. § 2241 

(West 2006 & Supp. 2011) petition. On January 14, 2011, the 

magistrate judge issued a report recommending dismissal of 

McFadden’s petition and denial of his motion to amend, with 

notice that objections were to be filed within fourteen days of 

service of the report. On February 7, 2011, the district court 

dismissed McFadden’s action, adopting the magistrate judge’s 

recommendation and stating that because McFadden failed to 

object to the report, he was not entitled to de novo review, an 

explanation of the district court’s decision, or the right to 

appeal. McFadden timely appealed. On appeal, McFadden 

complains that he did not receive the magistrate judge’s report

or the accompanying notice. A litigant who fails to timely 

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, 28 U.S.C.A.

§ 636(b)(1)(B) (West Supp. 2011), and is barred from contesting 

these determinations on appeal. Wright v. Collins, 766 F.2d 

841, 845-46 (4th Cir. 1985). However, this waiver is a 

prudential rule, not a jurisdictional requirement. United 

States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984). 
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Consequently, when a litigant is proceeding pro se, this court 

has held that he must be given fair notice of the consequences 

of failing to object before such a procedural default will 

result. Wright, 766 F.2d at 846. When objections to a 

magistrate judge’s determinations have been filed, de novo 

review by an Article III judge is not only required by statute, 

Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982), but has 

been held indispensable to the constitutionality of the 

Magistrate Judge’s Act. United States v. Raddatz, 447 U.S. 667, 

681-82 (1980). 

The record supports McFadden’s claim that he did not 

receive the magistrate judge’s report. On January 18, 2011, the 

court received McFadden’s change of address notice. On that 

same day, the magistrate judge’s report was mailed to McFadden’s 

original address. There is no indication in the record that the 

report was forwarded to McFadden’s new address. Because it 

appears that McFadden did not receive either the magistrate 

judge’s report itself or notice of the consequences of failing 

to object to the report, we are constrained to return the case 

to the district court so that McFadden can be provided with a 

copy of the report and notice of the need to file timely and 

specific objections to it.

Accordingly, we vacate the decision of the district 

court and remand for further proceedings consistent with this 
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opinion. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

VACATED AND REMANDED