Opinion
C. A. 8:22-cv-00299-JD-KFM
03-17-2022
De'Shawn Hudean Brownlee, Plaintiff, v. Juvan Chau; Kendall L. Cash; Adam J. Frederick; Yates Brown, Jr.; Samuel Matthew Lollis; Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
The plaintiff, a pretrial detainee proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on January 31,2022 (doc. 1). By order filed February 14, 2022, the plaintiff was given a specific time frame in which to bring his case into proper form for judicial screening (doc. 7). The plaintiff substantially complied with the Court's Order, bringing his case into proper form. With his proper form documents, the plaintiff also filed a motion for preliminary injunction, largely restating the allegations in the plaintiff's complaint (doc. 11). Having reviewed the plaintiff's complaint, the undersigned recommends it be dismissed.
ALLEGATIONS
The plaintiff, a pretrial detainee currently located in the Oconee County Detention Center, brings this action alleging constitutional violations by the defendants (doc. 1). The court takes judicial notice of the plaintiff's pending criminal proceedings in the General Sessions Court of Anderson County. See Anderson County Public Index, https://publicindex.sccourts.org/Anderson/PublicIndex/PISearch.aspx (enter the plaintiff's name and 2018A0410102318, 2018A0410102319, 2018A0410102320, 2018A0410102321, 2018A0410102322, 2018A0410102323, 2018A0420701232, 2018A0420701233, 2018A0420701234, 2019A0410100184, 2019A0410100185, 2019A0410101109, 2019GS0402743, 2019GS0402744) (last visited March 16, 2022). The plaintiff has charges from an arrest on December 20, 2018, as follows: two counts of attempted armed robbery (not yet indicted, case numbers 2018A0410102321, 2018A0410102322); one count of first degree burglary (indicted, case number 2018A041012318); two counts of kidnapping (indicted, case numbers 2018A0410102319, 2018A0410102320); and possession of a weapon during a violent crime (indicted, case number 2018A0410102323). Additional charges for this arrest date were filed on June 11, 2021: unlawful carry of a pistol (not yet indicted, case number 2018A0420701232), resisting arrest (not yet indicted, case number 2018A0420701233), and sale or delivery of a stolen pistol (not yet indicted, 2018A0420701234). The plaintiff also has charges with an arrest date of January 24, 2019, which may be related to the first arrest, as follows: first degree burglary (indicted, case number 2019A0410100184); and grand larceny (indicted, case number 2019A0410100185). The plaintiff has one charge with an arrest date of June 7, 2019: carrying or concealing a weapon by an inmate (not yet indicted, case number 2019A0410101109). The plaintiff has pending charges with an arrest date of November 19, 2019, as follows: two counts of armed robbery (indicted, case numbers 2019GS0402743, 2019GS0402744).
Phillips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record.”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘[t]he most frequent use of judicial notice . . . is in noticing the content of court records.””).
Here, the plaintiff alleges violations of his due process rights and “due diligence of the law” (doc. 1 at 5). He contends that Det. Chau has continued to lead the investigation of his pending criminal charges despite having a conflict and that Det. Frederick, who worked on the case when Det. Chau was on vacation, is also biased against the plaintiff (docs. 1 at 6; 1-1 at 1-3). He further contends that the eyewitness identification of him was improper because Det. Chau influenced the witness (doc. 1-1 at 1-2). The plaintiff further contends that he has been unconstitutionally held for three and a half years with no bond (doc. 1 at 6).
For injuries, the plaintiff alleges emotional distress (id. at 7). For relief, the plaintiff seeks release from jail, a new investigation of his charges, and money damages (id.).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
This complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to § 1983, seeking damages from the defendants. For the reasons that follow, the instant matter is subject to summary dismissal.
The plaintiff's complaint is barred by claim preclusion ( res judicata )
In the instant matter, the plaintiff seeks to re-litigate claims that have already been adjudicated and decided adversely to him by this Court. Under the doctrine of claim preclusion-or res judicata-a final judgment on the merits of an action bars the parties from re-litigating the issues that were or could have been raised in the prior action. See Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004). In order for res judicata to apply, there must have been (1) a final judgment on the merits in a prior suit; (2) the identity of the cause of action in both suits; and (3) the same parties or their privies in the two suits. Id. at 354-55 (citing Nash Cnty. Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)); see Orca Yachts L.L.C. v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002) (noting that claim preclusion applies when there has been a valid and final judgment-even if the matter was not actually litigated (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996)). In evaluating whether the same cause of action is brought in both suits, the court ascertains whether the claim in the new litigation “arises out of the same transaction or series of transactions as the claim resolved by the prior judgment.” Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999) (internal quotation marks omitted) (quoting Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986)). Here, the plaintiff again alleges that the defendants have violated his rights in the investigation of his pending criminal charges as well as in his ability to be released on bond (doc. 1). The plaintiff has already brought claims regarding the investigation of his criminal charges, although he names new defendants in this action. See Brownlee v. Anderson Cnty. Det. Ctr., et al. C/A No. 8:21-cv-00955-JD-KFM, 2021 WL 3116223 (D.S.C. July 22, 2021). Although unrelated excessive force claims relating to the plaintiff's time in the Detention Center are ongoing in the plaintiff's prior case, the remainder of the plaintiff's claims - including those asserted in this action - were adjudicated on the merits and dismissed without further opportunity to amend. Id. Accordingly, the plaintiff's claims against the defendants are barred by res judicata in the present matter.
Younger Abstention
With respect to the plaintiff's allegations that his rights have been violated in his pending state criminal proceedings, seeking the dismissal of his charges and release from custody, the plaintiff is requesting that this court interfere with or enjoin the pending state criminal prosecution against him (see generally doc. 1). As noted above, the plaintiff has several pending charges in the Anderson County Court of General Sessions. See Anderson County Public Index (enter the plaintiff's name and 2018A0410102318, 2018A0410102319, 2018A0410102320, 2018A0410102321, 2018A0410102322, 2018A0410102323, 2018A0420701232, 2018A0420701233, 2018A0420701234, 2019A0410100184, 2019A0410100185, 2019A0410101109, 2019GS0402743, 2019GS0402744) (last visited March 15, 2022). Because a federal court may not award injunctive relief that would affect pending state criminal proceedings absent extraordinary circumstances, this court should abstain from interfering with it. In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a federal court should not interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). Younger noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-45; see also Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (explaining the circumstances when Younger abstention is appropriate). From Younger and its progeny, the Fourth Circuit Court of Appeals has culled the following test to determine when abstention is appropriate: “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Md. Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Assn, 457 U.S. 423, 432 (1982)).
Here, the first criterion is met, as the plaintiff is involved in ongoing state criminal proceedings. As for the second criterion, the Supreme Court has stated that the “States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49 (1986). The Court also addressed the third criterion in noting “‘that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.'” Gilliam, 75 F.3d at 904 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)). Here, the plaintiff can address the alleged impropriety of the investigation leading to his arrest as well as the appropriateness of the lineup used to identify him in his pending criminal proceedings. Indeed, the plaintiff has not made a showing of “extraordinary circumstances” justifying federal interference with the state proceedings. See Robinson v. Thomas, 855 F.3d 278, 286 (4th Cir. 2017) (“A federal court may disregard Younger's mandate to abstain from interfering with ongoing state proceedings only where ‘extraordinary circumstances' exist that present the possibility of irreparable harm.”). For example, in examining extraordinary circumstances, courts have essentially analyzed whether procedures exist which would protect a plaintiff's constitutional rights without pretrial intervention - meaning no extraordinary circumstances are shown where a threat to the petitioner's rights may be remedied by an assertion of an appropriate defense in state court, such as that an identification was not properly obtained or an investigation was improper (as alleged in this matter). See Brown v. Dir. of Florence Cnty. Det. Ctr., C/A No. 2:20-cv-02951-JD-MGB, 2021 WL 6139411, at *2-3 (D.S.C. Oct. 5, 2021), Report and Recommendation adopted by 2021 WL 6137483 (D.S.C. Dec. 29, 2021). Therefore, to the extent the plaintiff again seeks to enjoin the pending state criminal proceedings against him, this court should abstain from hearing this action.
As for the plaintiff's damages claims, federal courts typically stay rather than dismiss claims for money damages during the pendency of the state court proceedings. See Deakins v. Monaghan, 484 U.S. 193, 202 (1988). Nevertheless, dismissal rather than a stay is appropriate when the plaintiff's damages claims are “plainly barred” for other reasons. See Nivens v. Gilchrist, 444 F.3d 237, 248-50 (4th Cir. 2006). Here, as set forth in detail below, in addition to res judicata as noted above, the plaintiff's claims are barred for other reasons; thus, they are subject to summary dismissal.
Section 1983 Claims
Release from Custody Request
For relief in this action, the plaintiff seeks release from custody in addition to money damages. However, the plaintiff may not seek release from custody in a § 1983 action. Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a complaint under the Civil Rights Act, § 1983. Muhammad v. Close, 540 U.S. 749, 750 (2004); see Preiser v. Rodriguez, 411 U.S. 475, (1973) (an application seeking release from custody is an application for habeas corpus and is not an available remedy under the Civil Rights Act). “Habeas corpus, and not § 1983, is the exclusive federal remedy for state prisoners seeking actual release from confinement,” Griffin v. Baltimore Police Dep't, 804 F.3d 692, 694-95 (4th Cir. 2015) (citing Preiser, 411 U.S. 475, 487-90), and “requests for relief turning on circumstances of confinement may be presented in a § 1983 action,” Muhammad, 540 U.S. at 750. Here, as noted, the plaintiff seeks release from prison because he was wrongfully arrested (doc. 1 at 7); however, release from prison is not available in this civil rights action. Heck v. Humphrey, 512 U.S. 477, 481 (1994) (noting that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”). Additionally, the Supreme Court has recently explained that “the pragmatic considerations discussed in Heck apply generally to civil suits within the domain of habeas corpus, not only to those that challenge convictions.” McDonough v. Smith, 139 S.Ct. 2149, 2158 (2019). As such, “[t]he proper approach in our federal system generally is for a criminal defendant who believes that the criminal proceedings against him rest on knowingly fabricated evidence to defend himself at trial and, if necessary, then to attack any resulting conviction through collateral review proceedings.” Id. at 2159.
Judge Lollis
The plaintiff also alleges that Judge Lollis erred when he failed to dismiss his charges despite knowing that the prosecution of the plaintiff has been vindictive (doc. 1 at 5-6). It is well-settled that judges have absolute immunity from a claim for damages arising out of their judicial actions unless they acted in the complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-64 (1978); see also Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (explaining that if a challenged judicial act was unauthorized by law, the judge still has immunity from a suit seeking damages). Whether an act is judicial or non-judicial relates to the nature of the act, such as whether it is a function normally performed by a judge and whether the parties dealt with the judge in his judicial capacity. Mireles, 502 U.S. at 12. Immunity applies even when the judge's acts were in error, malicious, or in excess of his authority. Id. at 12-13. Absolute immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511,526 (1985). The allegations as to Judge Lollis concern his judicial actions; as such, judicial immunity squarely applies and he should be dismissed.
Solicitor Yates Brown, Jr.
The plaintiff's claims against Sol. Brown, the prosecutor apparently assigned to the plaintiff's pending state criminal charges, are subject to dismissal because he is entitled to prosecutorial immunity. The crux of the plaintiff's claims against the solicitor are that he has failed to dismiss the plaintiff's charges despite knowing that Det. Chau has a conflict of interest (docs. 1 at 5-6; 1-1 at 1-3). However, prosecutors have absolute immunity from civil liability for activities in or connected with judicial proceedings such as criminal trials, bond hearings, bail hearings, grand jury proceedings, and pretrial motions hearings. Buckley v. Fitzsimmons, 509 U.S. 259, 267-71 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000). The plaintiff's bare allegations alone are insufficient to overcome the immunity afforded to the solicitor, so his claims against Sol. Brown, Jr., are subject to summary dismissal.
Bond Claim
Liberally construed, the plaintiff may attempt to assert that he has been unconstitutionally held without bond for three years (doc. 1 at 5-6). The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. However, “the United States Constitution does not establish an absolute right to bail, nor does federal statutory law provide a right to bail in state criminal cases.” Odom v. Smalls, C/A No. 3:09-cv-0629-PMD, 2009 WL 3805594, at *3 (D.S.C. Nov. 12, 2009). “The Eighth Amendment addresses pretrial release by providing merely that ‘[e]xcessive bail shall not be required.' This Clause, of course, says nothing about whether bail shall be available at all.” United States v. Salerno, 481 U.S. 739, 752 (1987). Accordingly, the plaintiff “has no federal right to be released on bond;” thus, his claims regarding being held without the opportunity to be released on bond fail. Odom, 2009 WL 3805594, at *3 (emphasis omitted).
It appears that the state court considered bond, but denied it for some of the plaintiff's pending charges. Of note, two of the plaintiff's pending charges indicate a surety bond of $2,000.00 (case numbers 2018A0420701232, 2018A0420701233, 2018A0420701234) and one shows a surety bond of $10,000.00 (case number 2019A0410101109). See Anderson County Public Index (enter the plaintiff's name and 2018A0410102318, 2018A0410102319, 2018A0410102320, 2018A0410102321, 2018A0410102322, 2018A0410102323, 2018A0420701232, 2018A0420701233, 2018A0420701234, 2019A0410100184, 2019A0410100185, 2019A0410101109, 2019GS0402743, 2019GS0402744) (last visited March 16, 2022).
False Arrest Claim
The plaintiff contends that Det. Chau, Det. Cash, and Ofc. Frederick violated his Fourth Amendment rights because there was no probable cause to arrest the plaintiff (docs. 1 at 5-6; 1-1 at 1-3). As an initial matter, the plaintiff has failed to allege a constitutionally cognizable injury because there is no federal constitutional right to be free from emotional distress, mental anguish, or psychological stress. See Williams v. Pruitt, C/A No. 8:13-cv-01812-JMC, 2013 WL 4500436, at *2 n.2 (D.S.C. Aug. 19, 2013) (citing Grandstaff v. City of Borger, Tex., 767 F.2d 161 (5th Cir. 1985), cert denied, 480 U.S. 916 (1987); Rodriguez v. Comas, 888 F.2d 899, 903 (1st Cir. 1989)). Even had the plaintiff alleged a constitutionally cognizable injury, his claims against Det. Chau, Det. Cash, and Ofc. Frederick are still subject to summary dismissal.
Section 1983 actions premised on malicious prosecution, false arrest, and/or false imprisonment are analyzed as actions claiming unreasonable seizures in violation of the Fourth Amendment. See, e.g., Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer decided to arrest him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating claims of false arrest and false imprisonment “are essentially claims alleging a seizure of the person in violation of the Fourth Amendment”).
However, “an indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)); see also Provet, 2007 WL 1847849, at *5 (section 1983 claims of false arrest and malicious prosecution were precluded because of indictment). This Court, as noted above, has taken judicial notice of the plaintiff's state criminal proceedings, including grand jury indictments related to his arrest of the plaintiff in December 2018, for one count of possession of a weapon during a violent crime, two counts of armed robbery, one count of burglary first degree, and two counts of kidnapping. See Anderson County Public Index (enter the plaintiff's name and 2018A0410102318, 2018A0410102319, 2018A0410102320, 2018A0410102323, 2019GS0402743, 2019GS0402744) (last visited March 16, 2022).The indictments act as a bar to the plaintiff's fourth amendment claims; as such, it is subject to summary dismissal.
Two of the plaintiff's charges relating to this arrest have not been indicted (Case Numbers 2018A0410102321 and 2018A0410102322); however, the lack of a grand jury indictment on these two charges does not affect that probable cause for the plaintiff's arrest because probable cause was established by the remaining charges, all of which were indicted. See Holloman v. City of Myrtle Beach, C/A No. 4:04-cv-01868, 2006 WL 4869353, at *7 (D.S.C. June 8, 2006) (noting that “where an arrestee is charged with multiple offenses, ‘if there was probable cause for any of the charges made then the arrest was supported by probable cause'” (internal citation and alterations omitted)), aff'd 235 Fed.Appx. 159 (4th Cir. 2007).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending his complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Com. Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)). As noted in more detail above, this action is duplicative of prior litigation in this court, the plaintiff may not seek release from prison in this action, and the court should abstain from interfering in his pending criminal charges under Younger. Thus, the undersigned recommends that the court decline to automatically give the plaintiff leave to amend his complaint. Accordingly, based upon the foregoing, the Court recommends that the District Court dismiss this action without prejudice and without issuance and service of process. Based upon the foregoing, it is further recommended that the plaintiff's motion for a preliminary injunction (doc. 11) be denied. It is further recommended that this action be designated as a “strike” pursuant to 28 U.S.C. § 1915(g). The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).