Petition for Writ of Certiorari — C. Holmes, Petitioner v. Granuaile, LLC, et al.

Supreme Court briefSep 23, 2025

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No.

FILED

SEP 2 3 2C25

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IN THE

SUPREME COURT OF THE UNITED STATES

— PETITIONER

(Your Name)

vs.

Z<J2.— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

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(NAME OF COURT THAT LAST RUL ED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

(Your Name)

(Address)

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(City. State. Zip Code)

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(Pi'ione Number)

Received

NOV - 5 2025

QUESTIONS PRESENTED

I. Motion for Affirmance of the Law of the Case on Prior Appeal in 4th Cir. App. Case No. 21-1470.

II. The instant appeal contains novel questions of law.

III. There is no voluntary, knowing consent to magistrate R&R on dispositive matters which

denies/diminishes substantial rights including substantial rights akin to mode of trial capable of

repetition, capable of evading review, and incapable of vindication on appeal. Denial of the substantial

right of de novo determination by Article III Judicial Officer without Report and Recommendation

(R&R) on dispositive matters, hereafter coerced R&R, impermissibly denies/diminishes substantial

rights without consent including but not limited to, appeal by and through the conflicted district court

judge, diminished standard of review with R&R, denial of full, fair, and meaningful review, and/or

diminished time to file objection/appeal of R&R with potential loss of full, fair, and meaningful review

if deemed untimely with improper procedural default by the conflicted overworked and underpaid

district court judges on a non-jurisdictional deadline as in the prior Granuaile, LLC, case (2:16-cv03969) and in this case.

IV. Material to review is the irregular posture of the case in the district court.

V. Under these facts, reasonable men/women should and would have reasonable questions regarding

the district court judges’ appearance of and/or lack of impartiality.

VI. Stay pending resolution is respectfully requested.

LIST OF PARTIES

[ ] All parties appear in the caption of the case bn the cover page.

[•/Till parties do not appear in the caption of the case on the cover page

pettofe »Mo”''"8111

A list of

Wh°Se judgment is the sub>ct of

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RELATED CASES

TABLE OF CONTENTS

OPINIONS BELOW..

............................................................. 1

JURISDICTION

•........................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

..........................................

...............................................................................................

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

APPENDIX B

msdC-5C_

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES

CASES

Banks v. United States, 614 F2d 95, 97 (6th Cir.1980)...

Beeson v. South Carolina (D. S.C. 2016)...

Blankenship v. Consolidation Coal Co.,

850 F.3d 630 (4th Cir. 2017)...

Branch v. Umphenour, 936 F.3d 994

(9th Cir. 2019)...

17,26

Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011)...

Brown v. Felsen, 442 U.S. 127,131 (1979)...

CAB v. Carefree Travel, Inc., 513 F.2d 375, 381 (CA2 1975)...

Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352(5th Cir.1980)... 19

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)...

20-21

Centro Tepeyac v. Montgomery County, 722 F.3d 184(4th Cir. 2013)...

Clodfelter v. Republic of Sudan, 720 F.3d 199, 209 (4th Cir. 2013)...

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949)...

21,26

Coleman v. Labor & Indus. Review

Comm'n, 860 F.3d 461(7th Cir. 2017)...

17,23,26

Commodity Futures Trading Commission v. Schor Conticommodity

Services, Inc v. Schor, 478 U.S. 833...

Coolidge v. Schooner California, 637 F.2d 1321(1981)...

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)...

County of Sacramento v. Lewis,

523 U.S. 833(1998)...

Curtis v. Citibank, 226 F.3d 133 (2nd Cir. 1999),,,

13,23

DeCosta v. Columbia Broadcasting System, Inc.,

520 F.2d 499(lst Cir.1975)...

Fidrych v. Marriott Int’l, Inc., 952 F.3d 124

(4th Cir. 2020)...

13,16,24,25

First United Methodist Church of Hyattsville v. U.S. Gypsum Co.,

882 F.2d 862, 869 (4th Cir. 1989)...

Flowers v. Crouch-Walker Corp., 507 F.2d 1378 (7th Cir. 1975)...

Fuentes v. Shevin, 407 U.S. 67(1972)...

22,23

Glenn v. Sch. Dist. No. Five of Anderson Cnty.,

366 S.E.2d 47 (Ct.App.1988)...

Gregg v. Manno, 667 F.2d 1116 (4th Cir. 1981)...

17,21

Greenlaw v. United States, 128 S. Ct. 2559 (2008)...

Hagood v. Sommerville, 362 S.C. 191,

607 S.E.2d 707 (2005)...

22,26

Hill v Jenkins, 603 F.2d 1256 (7th Cir. 1979)...

Holiday v. Johnston, 313 U.S. 342 (1941)...

Home & Indus. Meeh. Supplies, Inc. v.

CSX Transp., Inc. (D. S.C. 2019)...

12,13

Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972)...

INS v. Chadha, 462 U.S. 919 (1983)...

Kimberly v. Arms, 129U.S. 512 (1889)...

Kobyv. ARS Nat'IServs., Inc., 846 F.3d 1071...

Lucas v. Rawl Family Ltd. P’ship, 598 S.E.2d 712 (S.C. 2004)...

Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp.

(U.S. Sup. Ct., May 14, 2020)...

12,13

Marvel v. United States, 719 F.2d 1507,1511-12 (10th Cir.1983)...

Mathews v. Weber, 423 U.S. 261 (1976)...

McAdams v. Robinson, 26 F.4th 149 (4th Cir. 2022)...

McCurley v. S.C. Hwy. Dept., 182 S.E.2d 299 (1971)...

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)...

Moore v. Moore, 376 S.C. 467,

657 S.E.2d 743 (2008)...

Muhich v. Allen, 603 F.2d 1247 (7th Cir.1979)...

Neitzke v. Williams, 490 U.S. 319 (1989)...

Northern Pipeline Const. Co. v. Marathon Pipeline Co.,

458 U.S. 50 (1982)...

O' Donoghue v. United States,

289 U<S. 516 (1933). ..

14 24

Orpiano v. Johnson, 687 F.2d 44

(4th Cir. 1982)...

15,18,19,24

Pacemaker Diagnostic Clinic ofAmerica, Inc. v. Instromedix, Inc.,

725 F.2d 537 (9th Cir. 1984)...

’

Palmore v. United States, 411 U.S. 389 (1973)...

Panghat v. Balt. Veterans Affairs Med. Ctr. (D. Md. 2019)...

Pillay v. INS, 45 F.3d 14 (2nd Cir. 1995)...

Pueschel v. United States, 369 F.3d 345 (4th Cir. 2004)...

13 23

Rainha v. Cassidy, 454 F.2d 207 (1st Cir., 1972)...

Ravan v. Greenville Cty., 434 S.E.2d 296(S.C. Ct. App. 1993)),..

Reed v. Board of Election Comm'rs, 459 F.2d 121 (CAI 1972)...

16 17

Rice v. McKenzie, 581 F.2d 1114,1116 (4th Cir. 1978)...

Roell v. Withrow, 538 U.S. 580 (2003)...

13,14,15 24

Russell v. Lane, .890 F.2d 947 (7th Cir. 1989)...

TPO, Inc. v. McMillen, 460 F.2d 348 (7th Cir. 1972)...

15>16 17

Ex Parte United States, 242 U.S. 27,

37 S.Ct. 72, 61 L.Ed. 129 (1916)...

14 24

United States y. Barber, 865 F.3d 837

(5th Cir. 2017),..

17,26

United States v. Johnson, 48 F.3d 806

(4th Cir. 1995)...

14,17,24,26

United States v. Raddatz,

447 U.S. 667(1980)...

15,16,18,24

United States v. Shiraz,

(4th Cir., filed August .13, 2019)(unpublished)...

Walton v. Lindler, 972 F.2d 344

(4th Cir., 1992)(unpublished)...

15,24

Wharton-Thomas v. U.S., 721 F.2d 922 (3rd Cir. 1983)...

16,18

Willie James Glover, Plaintiff-Appellee

Cross-Appellant, v. Alabama Board of

Corrections, etal., Defendants, James

Towns, Defendant-Appellant

Cross-Appellee., 660 F.2d 120

(5th Cir. 1981)...

14,24

Wimmer v. Cook, 774 F.2d 68

(4th Cir., 1985)...

14,19,24

Wingo v. Wedding, 418 U.S. 461(1974)...

Wolff v. McDonnell, 418 U.S. 539 (1974)...

STATUTES

28 U.S.C. § 636(b)...

14,16,19,24

RULES

L.C.R. 73.02(B)(2)(D.S.C.)...

21,24

L.C.R. 73.02(B)(2)(d)(D.S.C.)...

Rule 8, Fed.R.Civ.P. (FRCP)...

Rule 8(c), Fed.R.Civ.P....

23,24

OTHER

Hubbard and Felix,

The South Carolina Law of Torts, 4th Ed.(2011)...

Toal et al.,

Appellate Practice in South Carolina, 3rd Ed.(2016)...

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[kj For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at■ Or,

[ ] has been designated for publication but is not yet reported; or,

[] is unpublished.

The opinion of the United States district court appears at Appendix <3

the petition and is

[ ] repor ted at

; Or,

[ ] has been designated for publication but is not yet reported; or,

L ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at

_ ; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

court

to the petition and is

[ ] reported at

______________________ ; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

[] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was f ? [ i 3>

S_________

[ ] No petition for rehearing was timely filed in my case.

[

timely petition for rehearing was denied by theUnited States Court of

Appeals on the following date: -? /-*

, and a copy of the

order denying rehearing appears at Appendix

. .

[ “i^An extension of time to file thejpetition for a writ of certiorari was granted

to and including

(date) on

9 Mr

(date)

in Application No.

A ^73 .

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix . ■ ■

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------- , and a copy of the order denying rehearing

appears at Appendix [ ] An .extension of time to file the petition for a writ of certiorari was granted

to and including — ------------- -- (date) on(date) in

Application No

A ,__ ....

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment I

Religion and Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government for a redress of grievances.

No Soldier

shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war,

but in a manner to be prescribed by law.

Amendment V

From the Bill of Rights

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just compensation.

Article III

Section 1

The judges, both of the supreme and inferior courts, shall hold their offices during good

behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be

diminished during their continuance in office.

28 U.S.C. § 636(b)(3)

(3) A magistrate judge may be assigned such additional duties as are not inconsistent with the

Constitution and laws of the United States.

INTRODUCTION

The Great Statesman, Rep. Elijah Cummings, may he rest in peace, observed, “When we’re

dancing with the angels, the question will be asked, in 2025, what did we do to make sure we kept our

democracy intact?” Emphasis supplied. Along with Rep. John Lewis, may God rest his soul, it is fitting

to remember these lifetimes of steadfast bravery and unremitting courage. It is fitting, as well, to

remember the beginnings of that democracy. The framers of our state and Federal Constitutions risked

life, limb, and liberty to escape abuses by the British government.

Both State and Federal Constitutions were deliberately crafted to foreclose those abuses here. The

framers did not need computers, tablets, or cell phones to discern the basic tenets of fundamental

fairness and due process. An impartial decision-maker was seen as a non-negotiable requirement for

preventing such abuses. The letter and spirit of our cherished Constitution categorically prohibit

deprivation of life, liberty, or property without due process of law, nor shall any person be denied equal

protection of the laws. The right of trial by jury shall be preserved inviolate. As a corollary, another

requirement, deemed mandatory and prohibitory, is that no single individual, whether British monarch

or government official shall have absolute authority over a citizen’s life, liberty, or property without

being subject to the right of appeal with meaningful judicial review. Accordingly, coerced Report &

Recommendation (R&R) without consent cannot pass constitutional muster.

In the instant case, petitioner timely reserves, preserves, does not waive, and expressly requests

fundamental fairness and substantial rights including but not limited to, meaningful opportunity to be

heard at a meaningful time and full and fair trial by jury. The record reflects examples of pro se filings

subjected to a separate second-class system of so-called justice, where the Local Rules of Court,

including L.C.R. 73.02(B)(2)(D.S.C.), are gleefully and cavalierly used as a trap for the unwary.

Significantly and materially, there is an abundant body of law decisively declaring separate is never

equal. The acknowledged systemic institutional biases against minorities and/or pro se litigants threaten

our democracy and feed the appearance of the proverbial “rigged” system. In the pro se setting, this

issue is of exceptional importance as it is capable of repetition, capable of evading judicial review, and

incapable of adequate remedy on appeal. The following inscription is found at the Four Comers of

Law in Charleston, SC: Where the rule of law ends, tyranny begins. The Judge J. Waties Waring

Judicial Center is named for the renowned crafter of divine dissents lying in repose in Charleston, who

must be turning over in his grave at the historically persistent lawlessness. As set forth more fully

below, it is respectfully submitted our democracy depends on the basic tenets of fundamental fairness

and due process just as much, if not more so, in this age of cell phones, tablets, computers, and

extraordinary and unprecedented public health and affiliated economic emergencies ongoing and still

unfolding.

To the extent pro se civil litigants are disproportionately affected and may have little or no access to

attorneys, these important public issues involving substantial rights are less likely to come before this

Honorable Court, which supports review. Institutional bias in the form of coerced non-Article III judge

Report and Recommendation (R&R) on dispositive matters, which denies substantial rights, supports

review.

STATEMENT OF CASE

The underlying case is based on complete diversity jurisdiction. The following are facts

pertinent herein. A foreign corporation’s wrongdoing has directly and proximately caused continuous,

on-going, and abatable injuries to petitioner’s family’s and petitioner's individual and neighboring

property interests including some of the most desirable coastal property in the State of South Carolina,

if not the East Coast. That foreign corporation failed and refused to install the mitigation plan it

represented it would install in a Flood Zone which is supported by opinions from four expert witnesses

including Citadel faculty with the Engineering Department. Pursuant to governing state substantive

law, defendants are liable for the recurring injuries and each injury marks the commencement of a new

time period.

As a threshold matter, the petitioner had no access to the district court or to the record due to

Covid closures. The docket sheet and/or purported ROA is patently false containing multiple

irregularities, deletions, and/or errors, with insufficient explanation including the following:

a) consistent with this district court’s pattern and practice of improper procedural default on a non-

jurisdictional Report & Recommendation (R&R) deadline, failure to timely file petitioner’s objections

to R&R timely placed in the drop box on 8.21.20 during Covid-19 when the Clerk’s Office was closed

to the public and impermissibly dismissed (ECF 19) on unsubstantiated, frivolous claim of frivolity,

then vacated with reversal of “frivolous” in ECF 29,

b) multiple irregularities including missing Docket Entries on the docket sheet without sufficient

explanation for meaningful review,

c) internal inconsistencies including but not limited to, the ROA fails to contain the copy of the

envelope, X-rayed by security, in which the objections were delivered on 8.21.20. The ROA

consistently includes copies of other X-rayed envelopes herein which corroborate timely filing. This

fact demonstrates mishandling and/or irregularities. Someone caused the disappearance of that

envelope witnessed, X-rayed, initialed, and dated 8.21.20, documenting timely filing on 8.21.20, along

with its contents which caused improper procedural default. Likely, the same person in the district

court who would take advantage of pro se litigants unable to access the Clerk’s office during Covid

closures which IT, video, and/or security may resolve,

d) apparently unauthorized documents including ECF #20 Judgment which is patently false claiming

defendants were granted summary judgment when, regrettably, defendants still have not been brought

into this 2020 case,

e) the R&R, Entry #17 dated 8.05.20, is nearly identical in whole or in part to the former Magistrate

Bristow Marchant’s summary dismissal R&R in the unrelated, inapposite case of Beeson v. South

Carolina (D. S.C. 2016),

f) a pattern and practice of improper procedural default on a non-jurisdictional R&R deadline by two

different district court judges herein and others: Honorable Brucie Howe Hendricks in this case and

Granuaile I, 2:16-cv-03969, with no adjudication on the merits for res judicata as well as Honorable

Richard M. Gergel in this case and Civil Action No. 8:23-cv-06873.

Significantly and materially, Magistrate Molly Hughes Cherry’s impermissible R&R (ECF 17)

summary dismissal before service based on affirmative defense, if any, which is required to be raised,

proven, and/or waived by defendants herein, is lifted, in whole or in part, from former Magistrate

Bristow Marchant’s inapposite R&R in an unrelated matter adopted by The Honorable Richard M.

Gergel in 2016. The R&R caption herein with Case No. 2:20-01748-BHH-BM reflects Magistrate

Molly Hughes Cherry’s lack of candor with the court and material omission regarding the original

source of the R&R at ECF 17, dated 8.05.20. Petitioner is prejudiced thereby and timely objects.

Materially, in the interim, the lower court’s public index documents Magistrate Molly Hughes Cherry’s

recusal in Civil Action No. 8:23-cv-06873 based on the same or Similar objections (ECF 77 on 7.29.24)

in this matter corroborating the meritorious motion herein addressed to Magistrate Molly Hughes

Cherry for her recusal including based on her personal favoritism/bias which is currently outstanding

with motion for abeyance pending her response. The Honorable Richard M. Gergel

thwarted/shielded/usurped her good faith response to motion for her recusal by denying without

comment the recusal motion addressed to the magistrate. That denial is reversible as a matter of law

including unreliable hearsay: The Honorable Richard M. Gergel would have no personal knowledge

of, including but not limited to, Magistrate Molly Hughes Cherry’s personal favoritism/bias in her heart

of hearts or other unconstitutional factor. The lower court R&R is void/voidable after Magistrate Molly

Hughes Cherry’s effective recusal herein as noted in the Civil Action No. 2:20-cv-01748-RMG, which

voids the lower court’s adoption of it. As set forth more fully below, it is respectfully submitted under

a realistic appraisal of psychological tendencies and human weakness, the interest herein poses such a

risk of actual bias or prejudgment that the practice of USDC-SC, Charleston Division, district court

judges including a pattern and practice of improper procedural default, a pattern and practice of failure

to provide adequate explanation for meaningful review, and/or a pattern and practice of

thwarting/usurping good faith response to motion addressed to the magistrate for the magistrate’s

recusal regarding personal favoritism/bias must be forbidden if the guarantee of due process is to be

adequately implemented. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (internal citations

omitted) (internal quotation marks omitted) (emphasis supplied). Accordingly, AFFIRMANCE OF

THE LAW OF THE CASE decided on prior appeal is respectfully requested. See US COA for the

Fourth Circuit App. Case No. 21-1470.

Petitioner timely filed motions for disposition by the district court, not a magistrate, requesting

the substantial right of de novo determination by Article III Judicial Officer without magistrate Report

and Recommendation (R&R) on dispositive matters. Thereafter, the lower court judge impermissibly

delegated to a magistrate without adequate explanation for meaningful review thereby predetermining

the outcome of denial of that motion. The district court judges herein wrongfully relied on an

inapplicable local civil rule as authority for referral, L.C.R. 73.02(B)(2)(d) (D.S.C.) (42 U.S.C § 1983

prisoner petitions). See Gregg v. Manno, 667 F.2d 1116 (4th Cir. 1981). The magistrate is without

authority to grant that Article III motion, the propriety of referring that Article III motion to the

magistrate is challenged, and the district court’s predetermined outcome of denial of that Article III

motion is void/voidable. The petitioner timely appealed and entered objections. This district court case

has been pending without service since 2020 including retaliation and/or adverse substantive

consequences for requesting the substantial right of de novo determination by Article III Judicial

Officer without Report and Recommendation (R&R) on dispositive matters. The district court

impermissibly summarily dismissed herein based on frivolous R&R affirmative defense, if any,

required to be raised, proven, and/or waived by defendants. Rule 8, Fed. R. Civ. P. (FRCP).

Accordingly, AFFIRMANCE OF THE LAW OF THE CASE on prior appeal in Fourth Circuit

Appellate Case No. 21-1470 with leave to amend is respectfully requested.

REASONS FOR GRANTING THE PETITION

I. Motion for Affirmance of the Law of the Case on Prior Appeal in 4th Cir. App. Case No. 21-1470.

To the extent there is no inconsistency in the provisions, the petitioner incorporates in full by

reference the contents of this document as if repeated verbatim herein. The district court

opinions/orders/judgments are internally inconsistent. AFFIRMANCE OF THE LAW OF THE CASE

decided on prior appeal herein is respectfully requested. See US COA for the Fourth Circuit App. Case

No. 21-1470. Specifically, the Fourth Circuit remanded with instructions. The record reflects

unreasonable delay by The Honorable District Court Judge Brucie Howe Hendricks. After 4 years, that

samp District Court Judge had not brought defendants into the case and then transferred the case to a

brother District Court Judge, The Honorable Richard Gergel. Accordingly, AFFIRMANCE OF THE

LAW OF THE CASE decided on prior appeal in Fourth Circuit App. Case No. 21-1470 with leave to

amend is respectfully requested.

Moreover, the Fourth Circuit issued remand on prior appeal thereby affirming Judge Hendrick’s

12/16/20 (ECF 29) rejection of the magistrate’s impermissible, overreaching August 5, 2020, R&R

(ECF17) frivolous claims of frivolity: Frivolity of claims, i.e., meritless on its face, is a threshold

determination on prior appeal. Affirmance of the law of the case on prior appeal is respectfully

requested. The Centro case prohibits overreaching attempts to delay/dismiss nonfrivolous claims and

deny full and fair consideration on the merits. Centro Tepeyac v. Montgomery County, 722 F.3d 184,

188 (4th Cir. 2013). The Pillay case articulated the same caveats: No overreaching attempts to dismiss

nonfrivolous claims and deny full and fair consideration on the merits. Pillay v. INS, 45 F.3d 14 (2nd

Cir. 1995). It is respectfully submitted the August 8, 2024, opinion, order, and judgment (ECF 79-80)

on appeal herein are reversible based on internal inconsistency including the 12/16/20 (ECF 29) district

court order rejecting ECF 19’s frivolous claims of frivolity. The attention of this Honorable Court is

directed to the attached excerpt of USDC-SC (Chas. Div.) Civil Docket for this Case No. 2:20-cv01748 and entries dated 8/27/20 (ECF 19), 8/31/20 (ECF 24 Order to Vacate ECF 19), and 12/16/20

(ECF 29). Specifically, the 12/16/20 (ECF 29) order reversed the 8/27/20 (ECF 19) order’s

unsupported finding of frivolity stating “(T)his action is summarily dismissed without prejudice.” The

record reflects the 8/27/20 opinion, order, and judgment (ECF 19-20) previously entered in this matter

by District Court Judge Brucie Howe Hendricks is patently false after timely objections to R&R were

submitted but misplaced in August 2020. Her order provides, “To date (August 27, 2020), no

objections have been filed (emphasis supplied).” In fact, objections were timely filed on August 21,

2020, at 2:24 pm. Likely, the timely objections were mislaid by the same individual who would take

advantage of pro se litigants during Covid closures when he or she thinks no one is looking. Thank

heaven for the clerk’s office which had already forwarded the date-stamped copy to the petitioner in the

self-addressed, stamped envelope. District Court Judge Brucie Howe Hendricks’judgment (ECF 20) is

also patently false claiming defendants were granted summary judgment when defendants havr never

been brought into this case. To the extent there is ambiguity, the rule of lenity supports petitioner’s

position.

Further, it is respectfully submitted the record reflects Magistrate Molly Hughes Cherry lacked

candor with the district court herein after failing and refusing to disclose that her August 5, 2020 (ECF

17), Report and Recommendation (R&R), is lifted in whole or in part from an unrelated, inapposite

case, Beeson, without crediting the original in what the Fourth Circuit termed plagiarism: In the same

vein and with lack of candor to the court, Magistrate Molly Hughes Cherry’s July 17, 2024, R&R (ECF

75) then failed and refused to disclose to the subsequent district court judge, The Honorable Judge

Richard Gergel, that her subsequent successive frivolous claims of frivolity on the same complaint had

already been denied by The Honorable District Court Judge Brucie Howe Hendricks in the 12/16/20

order, ECF 29. Magistrate Molly Hughes Cherry’s pattern and practice of lack of candor with the court

is troubling on many levels, including credibility; The record reflects appearance of and/or lack of

impartiality. To the extent there is ambiguity, the rule of lenity supports petitioner’s position. See

Neitzke v. Williams, 490 U.S. 319, 328 (1989) (“When a complaint raises an arguable question of law,

which the court ultimately finds is correctly resolved against the plaintiff,” the complaint fails to state a

claim but is not frivolous.). See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402,110 S.Ct. 2447,

110 L.Ed.2d 359, 58 USLW 4763 (1990)(the lack of any legal requirement other than the talismanic

recitation of “‘frivolous’ will foreclose meaningful review (emphasis supplied)). Further, this matter is

not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly

increase the cost of litigation. This matter is not frivolous, meritless on its face, or taken solely for the

purpose of delay. See attached expert opinion affidavit. This matter is in compliance with the Rules of

Court. On information and belief, the claims, defenses, and other legal contentions are warranted by

existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for

establishing new law and the factual contentions have evidentiary support and/or are based on secreted

or hidden material to be developed. Further, frivolity is a threshold matter and the record reflects The

Honorable District Court Judge Brucie Howe Hendricks’ reversal of the 8/27/20 (ECF 19) finding of

frivolity in the 12/16/20 (ECF 29) opinion. By analogy, failure to timely raise a statute of limitations

defense is a threshold matter: The 12/16/20 (ECF 29) opinion’s reversal of the 8/27/20 (ECF 19)

finding of frivolity on the same complaint operates like a waiver. Because there is an arguable basis in

governing law herein and/or for establishing new law, there is no frivolity. Accordingly,

AFFIRMANCE OF THE LAW OF THE CASE decided on prior appeal herein is respectfully

requested.

II. The instant appeal contains novel questions of law.

To the extent there is no inconsistency in the provisions, the petitioner incorporates in full by

reference the contents of this document as if repeated verbatim herein. The instant appeal contains

novel questions of law including failure to apply forum state substantive property law in this complete

diversity action and/or failure to apply intervening law in Lucky Brand Dungarees, Inc. v. Marcel

Fashions Grp. (U.S. Sup. Ct., May 14, 2020). The district court opinions are reversible as a matter of

law due to failure to apply forum state substantive property law in this complete diversity case.

“Where a series of recurring injuries are involved, each injury marks the commencement of a new time

period for that time period. Similarly, where the injury is continuous and abatable, a landowner may

recover for injury which occurred within the statutory period.” Hubbard and Felix, The South Carolina

Law of Torts, 4th Ed. (2011), p. 269. See, e.g., McCurley v. S.C. Hwy. Dept., 256 S.C. 332, 335,182

S.E.2d 299, 300 (1971)(“If the injury to neighboring lands is caused by negligence, or if the cause is

abatable, then there arises a continuous cause of action, and while limitations begin to run at the

occurrence of the first actual damage, the landowner may at any time recover for injury to his land

which occurred within the statutory period.” (emphasis supplied)); Glenn v. Sch. Dist. No. Five of

Anderson Cnty., 294 S.C. 530,366 S.E.2d 47 (Ct.App.1988). Moreover, "a landowner may not use his

land in a manner to create a nuisance," and "he may not discharge water in concentrated form upon his

neighbor's land." Home & Indus. Meeh. Supplies, Inc. v. CSX Transp., Inc. (D. S.C. 2019)(citing Glenn

v. Sch. Dist No. Five of Anderson Cnty., 294 S.C. 530, 366 S.E.2d 47, 49 (Ct.App.1988)). "A nuisance

presupposes negligence in many instances, if not in most, and the two torts may be coexisting and

practicably inseparable if the acts or omissions constituting negligence create a nuisance." Home &

Indus. Meeh. Supplies, Inc. v. CSX Transp., Inc: (D. S.C. 2019) (citing Ravan y. Greenville Cty., 434

S.E.2d 296, 306 (S.C. Ct. App. 1993)). The common enemy rule is subject to the law of nuisance and

an individual may not obstruct or alter the flow of water to create a nuisance per se. Lucas v. Rawl

Family Ltd. Partnership, 359 S.C. 505, 598 S.E.2d 712 (S.C. 2004). Moreover, the First United

Methodist Church case rejected federal preemption under the same or similar facts stating, “To

conclude otherwise would be contrary to the principles of comity which demand that in our federal

system, state law not be preempted unless it is the clear and manifest purpose of Congress.” First

United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 869 (4th Cir. 1989)

(internal quotation marks and citation omitted). In a2017 case, the Fourth Circuit ruled, “(W)e would

be distorting the traditional relationship between state and federal law, which limits federal preemption

to when Congress has clearly provided for it. See Medtronic, Inc. v. Lohr, 518 U.S. 470,485,116 S.Ct.

2240,135 L.Ed.2d 700 (1996) (explaining that the presumption against preemption of state law causes

of action rests on the fact that the States are "independent sovereigns in our federal system").

Blankenship v. Consolidation Coal Co., 850 F.3d 630 (4th Cir. 2017). Under the facts, challenge is

raised to failure to apply controlling state substantive property law for nuisance claims: Res judicata

(rj) is inapplicable to recurring, abatable nuisance claims in this complete diversity case. Home &

Indus. Meeh. Supplies, Inc. v. CSX Transp., Inc. (D. S.C. 2019)(citing Glenn v. Sch. Dist. No. Five of

Anderson Cnty., 294 S.C. 530, 366 S.E.2d 47, 49 (Ct.App.1988) and citing Ravan v. Greenville Cty.,

434 S.E.2d 296, 306 (S.C. Ct. App. 1993)). Accordingly, the lower appellate court clearly erred in

failing to apply forum state substantive property law in this complete diversity case.

In addition, failure to apply intervening case law is challenged. Federal notice pleading

requirements anticipate that complaints may appear the same or similar. "The determination of whether

two suits arise out of the same cause of action... does not turn on whether the claims asserted are

identical." Pueschel v. United States, 369 F.3d 345, 355 (4th Cir. 2004) (emphasis supplied). Notably,

the record reflects the “nearly identical” complaint was ruled non-frivolous in the prior case, USDC-SC

(Chas. Div.) Case No. 2:16-cv-03969. “Because claim preclusion would not bar litigation of events

arising after the first amended complaint was filed in Curtis I, it was an abuse of the district court's

discretion to dismiss those claims as duplicative.” Curtis v. Citibank, 226 F.3d 133 (2nd Cir. 1999)

(emphasis supplied). Further, the intervening U.S. Supreme Court case, as well as governing state

substantive property law, provide there is no identity of causes of action because, including but not

limited to, the instant action concerns recurring, continuous, and/or abatable injuries occurring since the

conclusion of the prior action. Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp. (U.S. Sup. Ct.

May 14, 2020). Binding precedent in that 2020 case provides further support for the 2020 cause of

action herein with claims occurring after conclusion of the prior case:

The conduct in the 2011 suit occurred after the conclusion of the 2005 suit; there can be no claim

preclusion... claim preclusion "describes the rules formerly known as 'merger' and 'bar.'" Taylor v.

Sturgell, 553 U. S. 880, 892, n. 5 (2008). "If the second lawsuit involves a new claim or cause of

action, the parties may raise assertions or defenses that were omitted from the first lawsuit even

though they were equally relevant to the first cause of action. Ibid.” Lucky Brand Dungarees, Inc. v.

Marcel Fashions Grp. (U.S. Sup. Ct., May 14, 2020).

That case ruled the plaintiff was not precluded from filing a new cause of action for recurring and

continuing wrongful conduct occurring after the conclusion of the prior case. Id. It is respectfully

submitted that to rule otherwise leads to the absurd result of encouraging wrongdoing for which the

wrongdoer is unaccountable. Moreover, the burden of proof on res judicata(rj) has not been met by

defendants and rj is an affirmative defense to be taised, proven, and/or waived by defendants which

undercuts appearance of a disinterested court. The district court opinion overlooks or misapprehends

intervening U.S. Supreme Court case law which renders res judicata inapplicable to the recurring,

abatable nuisance claims and/or equitable claims herein occurring after the prior case. Accordingly,

novel questions of law support this petition.

III. There is no voluntary, knowing consent to magistrate R&R on dispositive matters which

denies/diminishes substantial rights including substantial rights akin to mode of trial capable of

repetition, capable of evading review, and incapable of vindication on appeal. Denial of the substantial

right of de novo determination by Article III Judicial Officer without Report and Recommendation

(R&R) on dispositive matters, hereafter coerced R&R, impermissibly denies/diminishes substantial

rights wi±out consent including but not limited to, appeal by and through the conflicted district court

judge, diminished standard of review with R&R, denial of full, fair, and meaningful review, and/or

diminished time to file objection/appeal of R&R with potential loss of full, fair, and meaningful review

if deemed untimely with improper procedural default by the conflicted overworked and underpaid

district court judges on a non-jurisdictional deadline as in the prior Granuaile, LLC, case (2:16-cv03969) and in this case.

To the extent there is no inconsistency in the provisions, the petitioner incorporates in full by

reference the contents of this document as if repeated verbatim herein. Despite petitioner’s timely

denial of consent to a magistrate on dispositive matters, defendants have not been brought into this

2020 case. Undercutting appearance of a disinterested court and corroborating appearance of lack of

impartiality, the magistrate’s impermissible overreaching sua sponte frivolous summary dismissal R&R

(Report & Recommendation) is based on affirmative defense required to be raised, proven, and/or

waived by defendants. Rule 8, FRCP. Defendants have not met their burden of proof. The record

reflects retaliation and/or adverse substantive consequences for non-consent to a magistrate’s R&R as

well as denial of substantial rights akin to mode of trial.

It is fair to say the differences between an Article III Judicial Officer and a magistrate are

evident, even to the casual observer. It is fair to say the differences between an Article III Judicial

Officer and a magistrate are evident to a reasonable district court judge. The Constitutional right to

request Article III Judicial Officer without fear of retaliation is a substantial right akin to the right to a

particular mode of trial. Reasonable men/women should and would have reasonable questions

regarding lack of impartiality.

The petitioner respectfully submits petition for a writ of certiorari. The recent McAdams case

states, "There's no dispute that the magistrate judge could approve the class action and enter judgment

only by consent of the parties. 28 U.S.C. § 636(c)." McAdams v. Robinson, 26 F.4th 149 (4th Cir.

2022). Given that the record herein reflects timely express non-consent to a magistrate, this appeal

includes Fifth Amendment due process challenges, it includes challenges to the propriety of referring to

a magistrate a dispositive matter despite express request for de novo determination by Article III

Judicial Officer without R&R on dispositive matters, it includes challenges to referral of dispositive

matters to a magistrate without consent, and it asserts lack of statutory authority for magistrates under

the facts regarding, including but not limited to, 28 U.S.C. § 636(b). Under similar circumstances, the

Seventh Circuit found an appeal from a final judgment would provide a wholly inadequate remedy and

held that magistrates have no power, under the Magistrates Act to decide motions to dismiss or motions

for summary judgment, and district judges have no power to delegate such duties to magistrates. TPO,

Inc. v. McMillen, 460 F.2d 348 (7th Cir. 1972). For the reasons stated and for substantial justice

affecting substantial rights, the petitioner respectfully requests a writ of certiorari be granted.

By way of introduction, the Schor case observed the following imprecisions under our carefully

considered form of government:

As we explained in INS v. Chadha, 462 U.S: 919, 959,103 S.Ct. 2764 2788, 77 L.Ed.2d 317 (1983):

"The choices we discern as having been made in the Constitutional Convention impose burdens

on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard

choices were consciously made by men who had lived under a form of government that permitted

arbitrary governmental acts to go unchecked.... With all the obvious flaws of delay [and] untidiness ..

., we have not yet found a better way to preserve freedom than by making the exercise of power

subject to the carefully crafted restraints spelled out in the Constitution."

Commodity Futures Trading Commission v. Schor Conticommodity Services, Inc v.Schor, 478 U.S.

833,106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (emphasis supplied).

Significantly and materially, the Framers of our cherished Constitution intended Article Ill’s

protections to benefit individual litigants:

The Framers also understood that a principal benefit of the separation of the judicial power from the

legislative and executive powers would be the protection of individual litigants from decisionmakers

susceptible to majoritarian pressures including magistrates subjected to re-elections. Article Ill's salary

and tenure provisions promote impartial adjudication by placing the judicial power of the United States

"in a body of judges insulated from majoritarian pressures and thus able to enforce [federal law]

without fear of reprisal or public rebuke." United States v. Raddatz, 447 U.S. 667, 704,100 S.Ct. 2406

2427, 65 L.Ed.2d 424 (1980) (emphasis supplied).

The following Ninth Circuit case which parallels McAdams, supra, states:

Article III grants judges who wield the judicial power of the United States life tenure during good

behavior and a guaranteed salary that may not be diminished. These protections are designed to ensure

the independence and impartiality of the judicial officers authorized to decide the merits of a litigant's

case. The Supreme Court has held that litigants in federal court have a personal right, conferred by

Article III, to insist upon adjudication of their claims by a judge who enjoys the salary and tenure

protections afforded by Article III—protections that magistrate judges lack. Commodity Futures

Trading Commission v. Schor, 478 U.S. 833, 848,106 S.Ct. 3245, 92 L.Ed.2d 675 (1986); see

Pacemaker Diagnostic Clinic ofAmerica, Inc. v. Instromedix, Inc. ,725 F.2d 537, 542 (9th Cir. 1984)

(en banc). Roell v. Withrow, 538 U.S. 580, 590,123 S.Ct. 1696,155 L.Ed.2d 775 (2003)

Barring unusual circumstances, the named plaintiffs will have as strong an interest as the absent class

members in having their claims adjudicated by an independent and impartial decisionmaker.

Koby v. ARS Nat'l Servs., Inc., 846 F.3d 1071,1078 (9th Cir. 2017) (emphasis supplied).

Accordingly, the petitioner requests the protections afforded by Article III which magistrates lack.

Historically, precedent required consent for appointment of a special master on

substantive/dispositive matters:

In Kimberly v. Arms, 129 U.S. 512, 9 S.Ct. 355, 32 L.Ed. 764 (1889), the parties consented to the

appointment of a special master "to hear the evidence and decide all the issues between" them. Id. at

516, 9 S.Ct. at 356. In concluding that the court had erred in failing to treat the master's findings of fact

and law as presumptively correct, the Court noted that "[i]t [was] not within the general province of a

master to pass upon all issues." Id. at 524, 9 S.Ct. at 359. However, "when the parties consent to the

reference of a case to a master or other officer to hear and decide all the issues ..., the master is clothed

with very different powers from those which he exercises upon ordinary references, without such

consent." Id.

Wharton-Thomas v. U.S., 721 F.2d 922 (3rd Cir. 1983) (emphasis supplied).

Similarly, the case of Banks v. United States, 614 E2d 95, 97 (6th Cir. 1980) found that "absent consent,

the magistrate cannot conduct the trial itself.... Except for prisoner's cases, the Federal Magistrate

Act does not permit the magistrate to perform fact-finding on the merits of a case. That is the

exclusive function of a district judge." Id. The cases of Mathews v. Weber, 423 U.S. 261 (1976), United

States v. Raddatz, 447 U.S. 667 (1980), and Northern Pipeline Const. Co. v. Marathon Pipeline Co.,

458 U.S. 50 (1982), can be read as establishing that the decision making power must remain in the

Article III district court when the parties have not consented to a determination by a non-Article III

officer. Wharton-Thomas v. U.S., 721 F.2d 922 (3rd Cir. 1983) (emphasis supplied).

The Federal Magistrate Act caused concern among some members of Congress:

Congress manifested concern as well as enthusiasm, however, in considering the Act. Several

witnesses, including the Director of the Administrative Office and representatives of the Justice

Department, expressed some fear that Congress might improperly delegate to magistrates duties

reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n; House Hearings 123128. [Fn. 5 - Some courts have manifested a like concern. See TPO, Inc. v. McMillen, 460 F.2d 348

(CA7 1972); Reed w Board of Election Comm'rs, 459 F.2d 121 (CAI 1972). But cf. Palmore v. United

States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973).]

The hearings and committee reports indicate that in § 636(b) Congress met this problem in two

ways. First, Congress restricted the range of matters that may be referred to a magistrate to those where

referral is "not inconsistent with the Constitution and laws of the United States...Second,

Congress limited the magistrate's role in cases referred to him under § 636(b). The Act's sponsors made

it quite clear that the magistrate acts "under the supervision of the district judges" when he accepts a

referral, and that authority for making final decisions remains at all times with the district judge. Senate

Report 12. "(A) district judge would retain ultimate responsibility for decision making in every instance

in which a magistrate might exercise additional duties jurisdiction." House Hearings 73 (testimony of

Sen. iydings). See also id., at 127 (testimony of the Asst. Deputy Atty. Gen. Finley).

Mathews v. Weber, 423 U.S. 261, 96 S.Ct; 549, 46 L.Ed.2d 483 (1976) (emphasis supplied).

Notably in Weber, supra, the Supreme Court suggested that even certain social security appeals should

be sent directly to the district judge due to issues of statutory interpretation that require separate

treatment. Id. at fn. 6. Additionally, the Weber case states, “We express no opinion with respect to

either the wisdom or the validity of automatic referral in other types of cases." Id. At 274. Under

the facts, the Local Civil Rule for automatic assignment and the insufficiency of order of reference, if

any, is challenged. Specifically, under the facts, the insufficiency of order of reference, if any, in

essence denied the litigant the right to object at a meaningful time and denied the opportunity to appeal

an order of reference. The petitioner’s timely appeals herein confirm the issues are capable of

repetition, capable of evading judicial review, and incapable df vindication on appeal: Important public

issues including jurisdiction have been misapprehended, overlooked, ignored, and/or rebuffed

including impermissible reliance on an inapplicable Local Civil Rule (i.e., re prisoner petitions) as

authority for coerced R&R herein and other unrelated cases. See Gregg v. Manno, 667 F.2d 1116 (4th

Cir. 1981). Despite timely notice of objection and by inference, Magistrate Molly Hughes Cherry’s

repeated use of pejorative reference to a non-inmate as an inmate is unprofessional, at best. To the

extent her lack of professionalism could or would cause a non-inmate to.feel threatened from the bench

with incarceration, that lack of professionalism should and would cause reasonable men/women,

including the petitioner, to question her impartiality.

Further, from the Seventh Circuit, the Flowers case provides, "We start with the undoubted

proposition that there is no constitutional provision, no specific statute, and no rule approved by the

Supreme Court of the United States, or indeed by this court, which authorizes the assignment of cases

by clerks of court to magistrates." Flowers v. Crouch-Walker Corp., 507 F.2d 1378 (7th Cir. 1975). To

the extent a Local Civil Rule (LCR) for automatic assignment of cases by clerks of court to magistrates

is used herein and the record reflects that it is, petitioner challenges it. Under these facts, the record

reflects there is insufficient order of reference, if any, which is hereby challenged. To the extent there

is no determination by the district court of appropriateness for referral to the magistrate and the record

reflects there is none, that practice is challenged under the facts and does not comply with statutory

and/or constitutional provisions. The First Circuit raised Article III considerations in the Reed case

stating, “To the extent that the court’s blanket approval of the magistrate’s order purported to be a

decision on the merits, particularly a final decision involving findings of fact without even notice and

opportunity to be heard by a judge, it was what we have previously described as "a laying on of hands,"

Rainha v. Cassidy, 454 F.2d 207 (1st Cir., 1972), and an abnegation of judicial authority by the court

entirely contrary to the provisions of Article III. Reed v. Board of Election Comm’rs of City of

Cambridge, 459 F;2d 121 (1st Cir. 1972) (emphasis supplied). In affirming reference to a special

master "in accordance with the provisions of Fed.R.Civ.P. 53," the Second Circuit opined:

Questions have been raised, to be sure, about the use of magistrates in ultimate decision making such as

ruling on a motion to dismiss or a motion for summary judgment. The Seventh Circuit, for example,

has held that district courts have no power to delegate such duties to magistrates. TPO, Inc. v.

McMillen, 460 F.2d 348 (1972). In addition, with specific reference to the provision of § 636(b)

permitting a magistrate to be assigned to serve as a special master in an appropriate civil action under

the Federal Rules of Civil Procedure, the Report of the Senate Committee on the Judiciary on S. 945,

S.Rep.No.371, 25-27 (June 28,1967), U.S.Code Cong. & Admin.News, p. 4252 points out that the

"exception and not the rule" and the "exceptional circumstances" language of Rule 53(b) was very

carefully incorporated by reference into the Federal Magistrates Act. The Senate Committee said that

"These conditions which in essence reflect the rule laid down by the Supreme Court in LaBuy v. Howes

Leather Company... protect against any abdication of the decisionmaking responsibility that is

properly that of the district courts." Finally, we recently have had the guidance of Wingo v. Wedding,

418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), where the Court, incorporating the holding in

Holiday v. Johnston, 313 U.S. 342, 352-54,61 S.Ct. 1015, 85 L.Ed. 1392 (1941), held that the Act did

not change the requirements of 28 U.S.C. § 2243 that federal judges personally conduct habeas corpus

evidentiary hearings. The Court there once again emphasized that in the Federal Magistrates Act

"Congress carefully circumscribed the permissible scope of assignment to only 'such additional duties

as are not inconsistent with the Constitution and laws of the United States.' 28 U.S.C. § 636(b)

(emphasis added)." 418 U.S. at 470, 94 S.Ct. at 2848. ;

CAB v. Carefree Travel, Inc., 513 F.2d 375, 381 (CA2 1975).

Under the facts, it is respectfully submitted coerced R&R without consent on dispositive matters cannot

pass constitutional muster. Accordingly, the Federal Magistrates Act incorporates the mandates of the

“Constitution and laws of the United.States.” 28 U.S.C. § 636(b).

In the Ingram case, from the Sixth Circuit, Footnote 1 states: No order of reference appears in

the appendix; it must have been made verbally. A formal order ;of reference should have been made to

authorize the Magistrate to act, and so as to afford the litigants;an opportunity to object to the reference.

A Magistrate is not an Article III court. Ingram v. Richardson, 471 F.2d 1268, fn. 1 (6th Cir. 1972).

There is insufficient order of reference, if any, in the instant case and petitioner is prejudiced thereby.

But for wrongful referral, the outcome should and would be in(petitioner’s favor. The propriety of

referral to a magistrate under the facts is challenged and purported statutory authority for the magistrate

under: the facts is challenged.

In Raddatz, the Supreme Court raised another concern which supports petitioner’s position:

Neither the statute nor its legislative history reveals any specific consideration of the situation where a

district judge after reviewing the record in the process of making a de novo "determination" has doubts

concerning the credibility findings of the magistrate. The issue: is not before us, but we assume it is

unlikely that a district judge would reject a magistrate's proposed findings on credibility when those

findings are dispositive and substitute the judge's own appraisal; to do so without seeing and hearing

the witness or witnesses whose credibility is in question could well give rise to serious questions which

we do not reach. United States v. Raddatz, 447 U.S. 667,100 Si.Ct. 2406, 65 L.Ed.2d 424 (1980).

Under these facts, the petitioner raises these serious questions herein.

Other concerns include the following:

We do not deny that there may be basis for concern about the wisdom of large scale delegation of

adjudication to magistrates. Wholesale reference of cases even by consent does pose dangers to the

district courts as now organized. As the practice continues and becomes more wide spread, it will tend

to become routine. Pressure will naturally follow to increase the number of magistrates rather than

encounter the slow and often frustrating process of securing congressional action to add the needed

numbers of district judgeships, as well as the more probing inquiries by the attorney general and in the

Senate confirmation and approval of nominees for federal district judgeships.

Overworked district judges are unlikely to oppose the addition of more magistrates and may in

fact initiate such requests. The possibility of large scale dilutions of district courts to the point where

magistrates would outnumber district judges is not inconceivable. Whether such a rearrangement of the

federal system is desirable is, to say the least, highly debatable'.

Wharton-Thomas v. U.S., 721 F.2d 922 (3rd Cir. 1983).

Under the facts, coerced R&R without voluntary and knowing Consent cannot pass constitutional

muster.

•

Moreover, the Fourth Circuit noted, "On these facts (in Hill v. Jenkins') the Seventh Circuit held

that the district court erred in referring the case to a magistrate;without the consent of the parties

because the hearing before the magistrate was, for all intents and purposes, a civil trial." Orpiano v.

Johnson, 687 F.2d 44 (4th Cir. 1982) (citing Hill v Jenkins, 603 F.2d 1256 (7th Cir. 1979)). Further, a

ruling on petitioner’s specific objections to the.magistrate's proposed factual findings in that case

required a de novo determination by the district court. “The fact that Orpiano was acting pro se should

have encouraged the district court to read his objections broadly rather than in the narrow manner in

which it did. Failure to review the evidence presented to the magistrate and failure even to have a

transcript filed with the district court in that case was reversible error/’ Orpiano v. Johnson, 687 F.2d

44 (4th Cir. 1982) (emphasis supplied).

To the extent a litigant, including the petitioner herein, is repeatedly denied a hearing, in whole or in

part, to deny/diminish. full and fair record for de novo determination by the conflicted district court

judge who coerced R&R and/or to deny/diminish full and fair record for meaningful review, that

pattern and practice cannot pass constitutional muster.

Importantly,The following observation from the Wimmer case is noted:

Between 1976 and 1979, a number of courts, however, had begun to delegate to magistrates but always

with the consent of the parties the authority to conduct hearings, to hold trials with or without juries,

and to make final determinations. Marvel v. United States, 719 F.2d 1507,1511-12 (10th Cir.1983)

(decided under the 1976 amendments); Coolidge v. Schooner California, 637 F.2d 1321,1325 (9th Cir.)

(1976 amendments), cert, denied, 451 U.S. 1020,101 S.Ct. 3011, 69 L.Ed.2d 392 (1981); Calderon v.

Waco Lighthouse for the Blind, 630 F.2d 352, 355 n. 3 (5th Cir.1980); Muhich v. Allen, 603 F.2d 1247,

1251 (7th Cir. 1979); DeCosta v. Columbia Broadcasting System, Inc., 520 F.2d 499, 507-08

(1st Cir.1975), cert, denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976).

Wimmer v. Cook, 774 F.2d 68, 72 (4th Cir. 1985) (emphasis supplied).

Also, the Wimmer, supra, case noted the following:

The circuit court held that under its construction of this language of the subsection, the power to

conduct an evidentiary hearing in a habeas proceeding was not conferred on a magistrate. That decision

of the circuit court was affirmed by the Supreme Court in Wingo v. Wedding, 418 U.S. 461, 94 S.Ct.

2842, 41 L;Ed.2d 879 (1974). In its decision, however, the Supreme Court added this footnote: "We

indicate no views as to the validity of investing such authority in a magistrate or other officer 'outside

the pale of Article III of the Constitution.'" 418 U.S. at 467 n. 4, 94 S.Ct. at 2847 n. 4 (quoting

Wedding v. Wingo, 413 F.2d at 1133 n. 1). Wimmerv. Cook, 774 F.2d 68, 71 (4th Cir. 1985).

Wimmer, supra held when the reference to the magistrate is under § 636(b) there can be no jury trial

and no final disposition either as a result of a jury verdict in a trial before the magistrate or by the

magistrate himself; the constitutional provisions of Article III of the Constitution foreclose such power

as well as the terms of the statute itself. See Ford v. Estelle, 740 F.2d 374, 379-80 (5th Cir.1984).

Wimmer v. Cook, 774 F.2d 68, 74 (4th Cir. 1985).

Under the facts herein, petitioner objects including there is insufficient order of referral, if any,

by the district court despite timely express non-consent to a magistrate. To the extent a LCR provides

for automatic assignment to a magistrate by clerks of court, to the extent a LCR for automatic

assignment by clerks of court is being used for automatic referral, to the extent a LCR is ambiguous

regarding assignment/referral to a magistrate, or to the extent the LCR is adversely impacting

substantive consequences when consent is withheld, petitioner is prejudiced and takes exception.

Under the facts, the constitutional provisions of Article III of the Constitution foreclose such automatic

referral as well as the terms of the statute § 636(b) itself, which anticipates a specific order of reference

and a determination by the district court judge whether such a delegation is appropriate in the case.

Under the facts, there is no compliance with the statutory requirements including no determination of

appropriateness, insufficient order of reference, if any, no statutory authorization for automatic

referrals, and the lower court conflates a LCR for routine clerk assignment as a district court judge’s

order of reference without consent. Accordingly, under these facts, without statutory compliance, there

is no statutory authorization and there is no lawful designation or jurisdiction for magistrate R&R

herein which is void/voidable thereby voiding the district court’s improper procedural default and R&R

adoption. Accordingly, under the facts, the coerced R&R herein is reversible as a matter of law without

voluntary, knowing consent to magistrate R&R on dispositive matters.

IV. Material to review is the irregular posture of the case in the district court.

To the extent there is no inconsistency in the provisions, the petitioner incorporates in full by

reference the contents of this document as if repeated verbatim herein. Under the facts and given the

totality of circumstances, the burden of proof for res judicata(rj) has not been met by defendants who

have not been brought into this 2020 case and rj is an affirmative defense to be raised, proven, and/or

waived by defendants which undercuts appearance of a disinterested court herein. Rule 8, Fed. R. Civ.

P. (FRCP). Moreover, as a threshold matter, the ruling of frivolity in ECF 19 is vacated and reversed

in ECF 29 on the same set of facts which is internally inconsistent with ECF 79. The record reflects

the district court impermissibly engages in unauthorized representation of defendants which by

definition lacks impartiality requiring recusal: Essentially, that irregular posture of the case in the

American judicial system foreseeably devolves into chaotic, arbitrary, capricious, and/or inconsistent

rulings with inadequate record for meaningful review in violation of procedural and substantive due

process including denial of substantial rights. As per beloved RBG, former Justice Ginsburg in her

majority opinion, may she rest in peace, the role of the court is to be a neutral arbiter of matters the

parties present. Greenlaw v. United States, 128 S. Ct. 2559,171 L.Ed.2d 399, 554 U.S. 237, 243, 8

Cal. Daily Op. Serv. 7716, 21 Fla. L. Weekly Fed. S 421, 76 USLW 4533, 2008 Daily Journal D.A.R.

9297 (2008). Accordingly, AFFIRMANCE OF THE LAW OF THE CASE decided on prior appeal

(21-1470) herein is respectfully requested.

V. Under these facts, reasonable men/women should and would have reasonable questions regarding

the district court judges’appearance of and/or lack of impartiality.

To the extent there is no inconsistency in the provisions, the petitioner incorporates in full by

reference the contents of this document as if repeated verbatim herein. Under the facts, reasonable

men/women, including the petitioner, should and would have reasonable questions regarding the

district court judges’ appearance of and/or lack of impartiality. The petitioner is prejudiced thereby and

respectfully objects.

In her appellate practice book, former South Carolina Chief Justice Toal quotes this Honorable

Court from the case of Caperton v. A.T. Massey Coal Co.:

The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply

underscore the need for objective rules. Otherwise there may be no adequate protection against a judge

who simply misreads or misapprehends the real motives at Work in deciding the case. The judge’s own

inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual

bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on

that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the

Due Process Clause has been implemented by objective standards that do not require proof of actual

bias. In defining these standards the Court has asked whether, under a realistic appraisal of

psychological tendencies and human weakness, the interest poses such a risk of actual bias or

prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately

implemented. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (internal citations omitted)

(internal quotation marks omitted)(emphasis supplied), Toal et al., Appellate Practice in South

Carolina, Third Ed. (2016), p. 240-241.

The district court’s denial (ECF 83) of motion (ECF 82) addressed to the district court judge for his

recusal is reversible as a matter of law including inadequate explanation for due process and/or for

meaningful review. Further, the district court’s practice (ECF 78) of preventing/thwarting/usurping a

magistrate’s response to a motion (ECF 77) addressed to the magistrate for the magistrate’s recusal,

including based on personal favoritism/bias, is unreasonable, it is clear error, it is based on unreliable

hearsay, and it cannot pass constitutional muster. Specifically, the record begs the question why should

or would a presiding district court judge prevent/usurp a magistrate’s good faith response to motion

addressed to the magistrate for her recusal. To the extent there is ambiguity, the rule of lenity supports

petitioner’s position. It is respectfully submitted that the practice of the district court judge

thwarting/preventing/shielding a magistrate from responding in good faith to a motion addressed to the

magistrate for her recusal, including based on her personal favoritism/bias, poses such a risk of actual

bias or prejudgment, as in this case, that the practice must be forbidden if the guarantee of due process

is to be adequately implemented. Id. For the record, the magistrate effectively recused herself

thereafter, without comment, thereby denying adequate record for meaningful review. In any case, the

record reflects the magistrate recused herself which voids her R&R as well as the district court’s

adoption of it and dismissal. The district court judge’s denial of motion addressed to the magistrate for

the magistrate’s recusal is reversible as a matter of law and/or based on unreliable hearsay.

Accordingly, recusal of the district court judge is respectfully requested.

VI. Stay pending resolution is respectfully requested.

To the extent there is no inconsistency in the provisions, the petitioner incorporates in full by

reference the contents of this document as if repeated verbatim herein. Stay pending resolution is

respectfully requested including stay of the impermissible overreaching sua sponte ex parte summary

dismissal R&R in this 2020 case based on affirmative defense required to be raised, proven, and/or

waived by defendants. As set forth herein, the four requirements for stay have been met. For the

reasons stated, petitioner respectfully submits the burden of proof (BOP) has been met on all four

requirements for granting stay pending appeal. The district court denied permission to appeal which is

a futile request where the record reflects the overworked and underpaid district court judge is not a

neutral decision-maker and/or is conflicted.

a. Petitioner’s Success on the Merits

The substantial rights at issue herein are granted by our cherished Constitution. The district

court’s reliance on Local Civil Rule 73.02 (D.S.C.) is misplaced and it conflates the clerk’s

“assignment” to a magistrate with impermissible delegation to a magistrate for R&R without consent,

coerced R&R, on dispositive matters. See Gregg v. Manno, 667 F.2d 1116 (4th Cir. 1981).

Accordingly, success on the merits is predicted which supports stay pending appeal. See Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47 (1949); Hagood v. Sommerville, 362 S.C. 191,

607 S.E.2d 707 (2005). "The touchstone of due process is protection of the individual against arbitrary

action of government," Wolff v. McDonnell, 418 U.S. 539, 558 (1974), or denial of fundamental

procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (the procedural due process

guarantee protects against "arbitrary takings"). County of Sacramento v. Lewis, 523 U.S. 833,118 S.Ct.

1708,140 L.Ed.2d 1043 (1998). See Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008)

(procedural due process requires (1) adequate notice; (2) adequate opportunity for a hearing; (3) the

right to introduce evidence; and (4) the right to confront and cross-examine witnesses). See U.S.

Const., Article I, sec. 9 and 10; U.S. Const., Article III; U.S. Const, amend. I, IV, V, VII, and XIV.

b. Irreparable Harm

The order is effectively unreviewable and incapable of vindication on appeal due to the

irreversible effects of the decision. Under these facts, the denial of substantial rights is akin to the right

to a particular mode of trial must be immediately appealed or waived. Moreover, the order herein

determines the action by coerced R&R from conflicted Magistrate Molly Hughes Cherry who

effectively recused herself thereby voiding her coerced R&R unauthorized by defendants which is

hereby requested. Magistrate Molly Hughes Cherry failed and refused her solemn oath and sworn duty

to provide good faith response to motion addressed to the magistrate for her recusal and failed to

provide adequate explanation for meaningful review corroborating the merits of recusal. To the extent

the magistrate harbors personal favoritism/bias in her heart of hearts, recusal is required. See Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47 (1949); Hagood v. Sommerville, 362 S.C. 191,

607 S.E.2d 707 (2005).

Coerced R&R on dispositive matters herein irreparably denies and/or diminishes substantial

rights and prevents a judgment from which full and fair meaningful review might be taken by,

including but not limited to, reduction in the amount of time to appeal/object to R&R and/or

diminished standard of review. Further, the order adversely affects petitioner’s family's and petitioner’s

individual and property rights causing irreparable harm and denying full, fair, and meaningful

opportunity to be heard at a meaningful time which predicts success on the merits and which supports

stay pending appeal. Accordingly, irreparable harm supports this appeal with stay. “The touchstone of

due process is protection of the individual against arbitrary action of government," Wolff v. McDonnell,

418 U.S. 539, 558 (1974), or denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin,

407 U.S. 67, 82 (1972) (the procedural due process guarantee protects against "arbitrary takings").

County of Sacramento v. Lewis, 523 U.S. 833,118 S.Ct. 1708,140 L.Ed;2d 1043 (1998). See Moore v.

Moore, 376 S.C. 467, 657 S.E.2d 743 (2008) (procedural due process requires (1) adequate notice; (2)

adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and

cross-examine witnesses). See U.S. Const., Article I, sec. 9 and 10; U.S. Const., Article III; U.S. Const,

amend. I, IV, V, VII, and XIV.

c. The Balance of Equities

The balance of equities favors the petitioner’s family’s and petitioner’s state court individual

and property interests including adverse health and safety effects involving some of the most desirable

coastal real estate in South Carolina, if not the country. Moreover, the balance of equities regarding

wrongful summary dismissal before service based on affirmative defense required to be raised or

waived by defendant favors the petitioner. There is no authorization by defendants who are deprived of

the opportunity to be good neighbors and fulfill'their obligations to install the mitigation plan they

themselves submitted in order to mitigate adverse effects for the majority of property owners on that

block, including the petitioner. To the extent the district court is wrongfully acting as defendant’s

attorney/advocate without consent or authority, and the record reflects it is, the balance of equities

favors the petitioner’s family and the petitioner who are disproportionately affected thereby. In

addition, the balance of equities favors petitioner’s position because defendants herein are denied the

opportunity to be heard in matters that affect them and, for example, denied the opportunity to be good

neighbors and install the mitigation plan they themselves submitted before plaintiff retains trial

counsel. Accordingly, the balance of equities favors the petitioner. “The touchstone of due process is

protection of the individual against arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539,

558 (1974), or denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82

(1972) (the procedural due process guarantee protects against "arbitrary takings"). County of

Sacramento v. Lewis, 523 U.S. 833,118 S.Ct. 1708,140 L.Ed.2d 1043 (1998). See Moore v. Moore,

376 S.C. 467, 657 S.E.2d 743 (2008) (procedural due process requires (1) adequate notice; (2) adequate

opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and crossexamine witnesses). See U.S. Const., Article I, sec. 9 and 10; U.S. Const., Article III; U.S. Const,

amend. I, IV, V, VII, and XIV.

d. Public Interest is Served

Overlapping with the balance of equities above, to the extent the district court is wrongfully

acting as defendant’s attorney/advocate without consent or authority, and the record reflects it is, the

balance of equities favors the petitioner who is disproportionately affected thereby. In addition, the

balance of equities favors petitioner’s position because defendants are denied the opportunity to be

heard and, for example, to be good neighbors herein and install the mitigation plan they themselves

submitted.

Summary dismissal before service based on affirmative defense the defendant has the burden of

proving and raising is clear error and reversible as a matter of law. Brown v. Felsen, 442 U.S. 127,131

(1979); Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (noting that motions to dismiss (and

summary dismissals) generally do not permit inquiry into the merits of affirmative defenses (emphasis

supplied)). "The determination of whether two suits arise out of the same cause of action... does not

turn on whether the claims asserted are identical." Pueschel v. United States, 369 F.3d 345, 355

(4th Cir. 2004) (emphasis supplied). Courts ordinarily do not “resolve contests surrounding the facts,

the merits of a claim, or the applicability of defenses” summarily. Panghat v. Balt. Veterans Affairs

Med. Ctr. (D. Md. 2019)(citations omitted). Res judicata is an affirmative defense, not a limit on

subject-matter jurisdiction. A district court should not sua sponte consider an affirmative defense that

the defendant has the burden of raising. See Fed.R.Civ.P. 8(c). Clodfelter v. Republic of Sudan, 720

F.3d 199, 209 (4th Cir. 2013). “Because claim preclusion would not bar litigation of events arising after

the first amended complaint was filed in Curtis I, it was an abuse of the district court's discretion to

dismiss those claims as duplicative.” Curtis v. Citibank, 226 F.3d 133 (2nd Cir. 1999) (emphasis

supplied). The propriety of the magistrate acting as defendant’s advocate asserting affirmative defense

without defendant’s consent is challenged. Objection is timely entered because the magistrate is not

authorized to and the defendant has not consented to the magistrate’s wrongful advocacy for and/or

representation of the defendant. See Coleman v. Labor & Indus. Review Comm'n, 860 F.3d 461, 475

(7th Cir. 2017) (holding that a magistrate judge cannot "resolve the case finally" "unless all parties to

the action have consented to the magistrate judge's authority." The Seventh Circuit remanded: A

plaintiff’s consent alone cannot give a magistrate the necessary authority to resolve a case on the basis

that the complaint fails to state a claim upon which relief can be granted, in a case that otherwise

requires an Article III judge. The lesson we draw is that something as important as the choice between a

state court and a federal Court, or between an Article I and an Article III judge, cannot be resolved

against a party without bringing the party into the case through formal service of process (emphasis

supplied)). Moreover, the wrongful summary dismissal before service R&R undercuts appearance of a

disinterested court. The appearance of and/or impropriety by the brand-new magistrate is breathtaking.

The magistrate’s coerced R&R summary dismissal before service based on affirmative defense that the

defendant has the burden of raising and proving in this matter is clear error and reversible as a matter of

law. See Fed.R.Civ.P. 8(c).

Further, there is conflict with decisions of other courts and the U.S. Supreme Court which calls

for review herein. Specifically, petitioner respectfully appeals unauthorized, non-responsive, arbitrary,

and/or capricious denial of substantial rights in the district court. Wimmer v. Cook, 774 F.2d 68 (4th

Cir., 1985); Roell v. Withrow, 538 U.S. 580 (2003). There is no consent, much less express, voluntary

consent to coerced R&R on dispositive matters. Jurisdiction cannot be waived. 28 U.S.C. § 636(b)(3).

Further, without consent, there is no jurisdiction for magistrate R&R on dispositive matters herein. To

the extent a litigant’s right to an Article III Judicial Officer is thwarted/denied by impermissible

delegation and/or wrongful R&R without consent, the interpretation and/or application of the statute

and/or the Local Rule 73.02 (D.S.C.) cited, cannot pass constitutional muster.

The framers of the constitution intended litigants to be the beneficiaries of the substantial right

to an Article III Judicial Officer. Conflict between 28 U.S.C. § 636(b)(1) and 28 U.S.C. § 636(b)(3) is

resolved in favor of the intended beneficiaries of that constitutionally protected substantial right. The

substantial right of de novo determination by an Article III Judicial Officer without R&R on dispositive

matters is not forfeited nor voluntarily and expressly waived but is timely reserved and not waived.

Wimmer v. Cook, 774 F.2d 68 (4th Cir., 1985); Roell v. Withrow, 538 U.S. 580 (2003). It is respectfully

submitted that overworked and underpaid district court judges may not be neutral decision-makers in

the request for de novo determination by art Article III Judicial Officer without R&R. on dispositive

matters.

Pursuant to 28 U.S.C. § 636(b)(3), a magistrate may be assigned such additional duties as are

not inconsistent with the Constitution and laws of the United States. The denial of a litigant’s timely

express request for de novo determination by an Article III Judicial Officer without R&R on dispositive

matters is inconsistent with the Constitution and laws of the United States. “The Supreme Court has

stated that the Constitution requires that the judicial power of the United States be vested in courts

having judges with life tenure and undiminishable compensation in order to protect judicial acts from

executive or legislative coercion. O' Donoghue v. United States, 289 U.S. 516, 531, 53 S.Ct. 740, 743,

77 L.Ed. 1356 (1933). A decision without consent by a magistrate, a non-Article III judge, would

undermine this objective of the Constitution and might violate the rights of the parties. Willie James

Glover, Plaintiff-Appellee Cross-Appellant, v. Alabama Board of Corrections, EtAl., Defendants, James

Towns, Defendant-Appellant Cross-Appellee., 660 F.2d 120 (5th Cir. 1981). See Wimmer v. Cook, 774

F.2d 68 (4th Cir., 1985); Roell v. Withrow, 538 U.S. 580 (2003); United States v. Johnson, 48 F.3d 806,

808-09 (4th Cir. 1995) (citing Ex Parte United States, 242 U.S. 27, 41, 37 S.Ct. 72, 61 L.Ed. 129

(1916)). “De novo review of a magistrate judge's determinations by an Article III judge is not only

required by statute, see Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982), but is indispensable to

the constitutionality of the Magistrate Judge's Act. See United States v. Raddatz, 447 U.S. 667, 681-82

(1980).” Walton v. Lindler, 972 F.2d 344 (4th Cir., 1992) (unpublished). The record suggests

predetermined outcome, impermissible delegation, undue influence, e.g., by magistrate, personal

favoritism/bias, and/or other unconstitutional factor. Ambiguity regarding impermissible delegation

without consent is reversible error. Similarly, application of the improper legal standard and/or

ambiguity regarding the proper legal standard is reversible error. To the extent there is ambiguity, and

the record reflects there is, the rule of lenity supports this appear with stay pending resolution.

The propriety of referring a motion for de novo determination by an Article III Judicial Officer

without R&R on dispositive matters to a magistrate is challenged. As a threshold matter, the magistrate

would have no authority over the district court judge and the Local Rule cited in the R&R does not

authorize such referral for disposition by a magistrate. Further, by wrongful referral, the district court

judge thereby predetermines the outcome of denial by refusal to grant the meritorious and protected

substantial right to an Article III Judicial Officer, prejudicing and/or signaling the matter for a second

class system of so-called justice dispensed by a non-Article III Judge with, diminished standard of

review on appeal, diminished appeal rights, and/or diminished time to appeal the R&R without consent.

The wrongful referral to a magistrate smacks of retaliation for requesting a substantial right akin to the

right to a particular mode of trial. The alleged wrongful referral to a magistrate, results in the outcome

of denial with the appeal of the magistrate’s denial to the district court judge who predetermined that

outcome of denial. The appeal of that predetermined outcome herein was followed by the district court

judge’s lack of adequate explanation for meaningful review. See, e.g., Fidrych v. Marriott Int’I, Inc.,

952 F.3d 124,146 (4th Cir. 2020)(lack of adequate explanation for meaningful review). Predetermined

outcome and/or lack of de novo determination, such as, e.g., wrongful referral and/or impermissible

delegation, is corroborated further by a pattern and practice herein of the district court judge citing

little, if any, case law on the merits. Petitioner asserts prejudicial error and requests reversal or remand

to provide adequate explanation with adequate record for meaningful review.

In even-handedness, transparency, and fundamental fairness a neutral decision-maker should

decide the appeal of the magistrate’s denial, not the district court judge who referred to the magistrate,

thereby predetermining the outcome of denial. By analogy, occasionally, a recently appointed appellate

court judge will find him or herself in the position of potentially reviewing a decision that he or she

made while in the court below. In these cases, the Judge or Justice will recuse him or herself from

reviewing his or her own decision. A judge "shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned." Rule 3(E)(1), CJC, Rule 501, SCACR. Disqualification

is required if a reasonable factual basis exists for doubting the judge's impartiality. Rice v. McKenzie,

581 F.2d 1114, .1116 (4th Cir. 1978). In the Rice case, then Chief Judge Haynsworth further ruled that,

"For many years a federal judge has been prohibited from sitting to hear or determine an appeal in a

case or issue tried by him. .28 U.S.C.A. § 47. To say the least, it would be unbecoming for a judge to sit

in a United States Court of Appeals to participate in the determination of the correctness, propriety and

appropriateness of what he did in the trial of the case. After rendering decisions, some judges remain

open minded, and some are unreluctant to confess previous error, but a reasonable person has a

reasonable basis to question the impartiality of a judge who sits in a United States Court of Appeals to

review his own decision as a trial judge." Id. at 1117. The inquiry is whether a reasonable person would

have a reasonable basis for questioning the judge's impartiality, not whether the judge is in fact

impartial. Id. at 1116. This oft-cited case is well stated, sound, and universally accepted as logical and

fair. “There is another way to look at the case, however: as one in which the losing litigant appeals

from a ruling by Judge X to an appellate panel that includes Judge X; and it is considered improperindeed is an express ground for recusal, see 28 U.S.C. Sec. 47—in modern American law for a judge

to sit on the appeal from his own case. On this ground the Fourth Circuit held in Rice that section

455(a) required the district judge to recuse himself. [Rice v. McKenzie, 581 F.2d 1114,1116 (4th Cir.

1978).] We agree with this result." Russell v. Lane, .890 F.2d 947 (7th Cir. 1989) (emphasis supplied).

Accordingly, the district court judge who allegedly wrongfully referred, thereby predetermining the

outcome of denial, is not a neutral decision-maker on appeal of that magistrate’s denial of the

substantial right of de novo determination by Article III Judicial Officer without R&R on dispositive

matters.

Predetermined outcome and/or lack of de novo determination is corroborated by a pattern and

practice of lack of adequate explanation for meaningful review and by adopting R&R’s citing little, if

any, case law on the merits. See, e.g., Fidrych v. Marriott Int’I, Inc., 952 F.3d 124,146 (4th Cir. 2020)

(remanded for lack of adequate explanation for meaningful review: "(T)he court disposed of the

substance of the issue in a single sentence. See J. A. 252. We need more explanation to conduct

meaningful appellate review of the court’s disposition of the motion."). -Specifically, the orders on

appeal fail to provide adequate explanation for meaningful review, fail to address the merits, and fail to

address controlling case law cited by petitioner. The record reflects defendants have not been served

and no party has given consent. The magistrate has no authority and no jurisdiction without consent by

both parties on dispositive matters. But for wrongful magistrate’s summary dismissal before service

R&R herein, the outcome should and would be different in the plaintiff’s favor. This matter has been

pending far too long without service..

In addition, the recent unpublished case of Shiraz addresses impermissible delegation. United

States v. Shiraz, (4th Cir., filed August 13, 2019). From that case, “core judicial functions cannot be

delegated....Such delegation violates Article III of the Constitution. United States v. Johnson, 48 F.3d

806, 808-09 (4th Cir. 1995).” Id., p.4. Similarly, ambiguity as to whether the district court

impermissibly delegated authority is reversible error. Id., p.5 (citing United States v. Barber, 865 F.3d

837, 840 (5th Cir. 2017). Moreover, the 9th Circuit has ruled that without the parties’ consent, the

magistrate lacked jurisdiction. Branch v. Umpheriour, 936 F.3d 994 (9th Cir. 2019). See Coleman v.

Labor & Indus. Review Comm'n, 860 F.3d 461,475 (7th Cir. 2017) (holding that a magistrate judge

cannot "resolve the case finally" "unless all parties to the action have consented to the magistrate

judge's authority." The Seventh Circuit remanded: A plaintiff’s consent alone cannot give a magistrate

the necessary authority to resolve a case on the basis that the complaint fails to state a claim upon

which relief can be granted, in a case that otherwise requires an Article III judge. The lesson we draw is

that something as important as the choice between a state court and a federal court, or between an

Article I and an Article III judge, cannot be resolved against a party without bringing the party into the

case through formal service of process (emphasis supplied)). To the extent a litigant’s right to an

Article III Judicial Officer is thwarted/denied by impermissible delegation and/or coerced R&R on

dispositive matters, the interpretation and/or application of the statute and/or local rule cannot pass

constitutional muster. Coerced R&R jeopardizes/impairs litigants’ substantial rights. To the extent a

substantial right, including full and fair judicial review, is diminished for pro se litigants by coerced

R&R, and the record reflects that it is, magistrate R&R on dispositive matters without consent cannot

pass constitutional muster. Without Constitutional and statutory authority, the magistrate order is a

nullity lacking jurisdiction. Jurisdiction can be raised at any time and jurisdiction cannot be waived.

The substantial right of de novo determination without R&R under these facts by an Article III Judicial

Officer on dispositive matters is respectfully requested. Accordingly, there is conflict with decisions of

other courts and the U.S. Supreme Court which supports this appeal with stay. This issue is of

exceptional importance, it is capable of being and has been repeated, it is capable of evading and has

evaded judicial review, and it is incapable of vindication on appeal.

Stay pending resolution should and would materially advance the ultimate termination of the

litigation. Under these facts, the decision at issue involves “coerced R&R oh dispositive matters”

and/or denial of substantial rights which are closely related to the right to a particular mode of trial, a

well-established substantial right. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47

(1949); Hagood v. Sommerville, 362 S.C. 191, 607 S.E.2d 707 (2005).

In sum, for the reasons stated, petitioner respectfully submits the burden of proof (BOP) has

been met on all four requirements for granting stay pending appeal of wrongful referral without consent

to coerced R&R with improper procedural default On a non-jurisdictional deadline for dispositive

matters by the same magistrate who effectively removed/recused herself after recommending summary

dismissal before service Report & Recommendation (R&R) based on affirmative defense, if any,

required to be raised, proven, and/or waived by defendants. For substantial justice affecting substantial

rights, petitioner respectfully requests stay pending resolution of denial of substantial rights incapable

of vindication on appeal.

CONCLUSION

For substantial justice affecting substantial rights, the petition for a writ of certiorari with stay

pending resolution should be granted.

Respectfully submitted,

PO Box 187

Sullivans Island, SC 29482

843.883.3010e

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.