Opinion
Case No. 2:18-cv-2738-MBS-MGB
10-17-2018
Anthony G. Bryant, Plaintiff, v. U.S. Secret Service, U.S. Postal Service, Attorney General of United States, U.S. Attorney for the District of South Carolina Defendants.
REPORT AND RECOMMENDATION
Anthony Bryant ("Plaintiff") is a nonprisoner litigant who is proceeding pro se and in forma pauperis ("IFP"). Pursuant to the provisions of 28 U.S.C. §636(b)(1) and Local Civil Rule 73.02(B)(2)(D.S.C.), the United States Magistrate Judge is authorized to review the record and to submit findings and recommendations to the United States District Judge. Upon review, the Magistrate Judge recommends that the Amended Complaint (DE#12) should be summarily dismissed , with prejudice, and without issuance and service of process, for the following reasons:
I. Relevant Law
A. Liberal Construction
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, "[t]he 'special judicial solicitude' with which a district court should view ... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
B. Standard of Review
Upon application, an indigent litigant may commence an action IFP in federal court without prepaying the administrative costs of proceeding with the lawsuit. 28 U.S.C. § 1915(a)(1). To protect against possible abuses of this privilege, the statute allows the court to dismiss the case upon finding that the action is "frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. §1915(e)(2)(B). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Under 28 U.S.C. §1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte "at any time." Neitzke v. Williams, 490 U.S. 319, 326 (1989). "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Id.
C. Inherent Authority to Dismiss Frivolous Case
The United States Supreme Court has observed that federal district courts possess inherent authority to dismiss a frivolous case. Mallard v. U.S. District Court, 490 U.S. 296, 307-08 (1989) ("Section 1915(d) ... authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision."); see also Hagans v. Lavine, 415 U.S. 528, 536-537 (1974) (holding that federal district courts may dismiss claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit").
Consistent with such authority, the Fourth Circuit Court of Appeals has held that "frivolous complaints are subject to summary dismissal pursuant to the inherent authority of the court." Ross v. Baron, 493 F.App'x 405, 406 (4th Cir. Aug. 22, 2012); Cabbill v. United States, Case No. 1:14-cv-4122-JMC-PJG, 2015 WL 6905072, *5 (D.S.C. Nov. 9, 2015) (same), appeal dism'd, 2016 WL 1085106 (4th Cir. Mar. 21, 2016); Anderson v. Patterson, Case No. 6:16-761-MGL-JDA, 2016 WL 1743095 (D.S.C. April 12, 2016), adopted, 2016 WL 1732763 (D.S.C. May 2, 2016). "A suit is frivolous if it lacks an arguable basis in law or fact." Neitzke, 490 U.S. at 325; McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009). Therefore, the Amended Complaint is subject to review pursuant to the inherent authority of this Court to ensure that subject matter jurisdiction exists and that the case is not frivolous. See e.g., Carter v. Ervin, Case No. 0:14-cv-00865-TLW-PJG, 2014 WL 2468351, *3 (D.S.C. June 2, 2014), appeal dism'd, 585 F.App'x 98 (4th Cir. 2014); Mayhew, 2014 WL 468938 at *1, fn.1 (exercising inherent authority to summarily dismiss a frivolous case).
Plaintiff has filed the following civil cases in this judicial district since March 2018: Case Nos. 2:18-cv-606-MBS, Bryant v. Internal Revenue Service, et al; 2:18-cv-607-MBS Bryant et al v. Internal Revenue Service, et al.; 2:18-cv-1436-MBS-MGB Bryant v. Environmental Protection Agency, et al; 2:18-cv-2159-MBS-MGB, Bryant v. U.S. Department of Transportation et al; 2:18-cv-2217-MBS-MGB, Bryant v. US Dept. of Education et al; 2:18-cv-2467-MBS-MGB, Bryant v. Federal Communication Commission et al; 2:18-cv-2582-MBS-MGB, Bryant v. U.S. Marshal et al; 2:18-cv-2593-MBS-MGB, Bryant v. U.S. Dept. of Interior, et al.; 2:18-cv-02738-MBS-MGB, Bryant v. U.S. Secret Service, et al. All of the pleadings in these cases have been nonsensical.
II. Allegations
Plaintiff filed a nonsensical Complaint (DE#1, 10/09/2018). This Court gave Plaintiff an opportunity to amend his pleading. (DE# 9, Order of 10/10/2018). Plaintiff filed an Amended Complaint (DE# 12, 10/15/2018). Plaintiff names the following parties as Defendants: the U.S. Secret Service, U.S. Postal Service, Attorney General of United States, and the U.S. Attorney for the District of South Carolina, and the Attorney General of United States. He checks the box for "federal question jurisdiction" and states that the basis for jurisdiction is: "42 U.S.C. § 2000d and 42 U.S.C. § 3789 Title VI filing a complaint to DOJ, False Claims Act." (Id. at 3, ¶ II.A).
In the Amended Complaint, Plaintiff's "Statement of the Claim" consists of the following (verbatim):
U.S. Secret Service grantees and/or task force via Identity theft June 1989 discovered November 6, 2009 U.S. Postal Service Privacy Act Exemption violated Bank of America, Wells Fargo"(DE# 12 at 5, ¶ III). For relief, Plaintiff states (verbatim):
One million eight hundred thousand August 6, 2010 Police report city of Charleston grantee of U.S. Secret Service Id theft False Claims Act to complaint deemed under False Claims Act"(Id. at 5, ¶ IV "Relief").
III. Discussion
Review of the Amended Complaint reflects multiple grounds for summary dismissal.
A. Failure to State a Claim
The United States Supreme Court has made it clear that more than conclusory statements are required to state a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009). A plaintiff must allege specific facts that adequately support the claim. Id. The Amended Complaint fails to state any factual or legal basis for any federal claims. Although courts give "liberal construction" to pro se pleadings, the Fourth Circuit Court of Appeals has emphasized that federal courts may not "ignore a petitioner's clear failure to allege facts that set forth a cognizable claim." Wilson, 699 F.3d at 797.
The allegations of the Amended Complaint are nonsensical and incomprehensible. Plaintiff does not allege any supporting facts that suggesting a constitutional violation or any violation of federal law. The Amended Complaint consists of disjointed phrases that fail to state any sort of coherent claim. Even liberally construing the allegations of Amended Complaint, it is not possible to discern any plausible claims from the disconnected sentence fragments in it. The Fourth Circuit Court of Appeals has emphasized that "[p]rinciples requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett, 775 F.2d at 1278.
The exhibits attached to the Amended Complaint in the present case shed no light on Plaintiff's allegations, and any relevance cannot be discerned. (DE#12-1). Such exhibits include: page 1 [of 3 pages] from a Bank of America account statement to Port City Services, LLC (at 1); a 2012 IRS notice regarding Plaintiff's 2012 tax return, indicating the IRS had assigned him an "Identity Protection Personal Identification Number" (at 2); a letter from the Department of Justice (date stamped Feb. 11, 2011) acknowledging receipt of his complaint to the Office of Justice Programs (at 3); an estimate of escrow activity from First Federal of Charleston, with all numbers scribbled out (at 4); the "proposed information session and public hearing agenda" for a hearing before the South Carolina Department of Insurance in 2013 (at 5); and a postal receipt (at 6). Plaintiff has also submitted three sets of "Objections to Report and Recommendation," even though no Report and Recommendation had been entered yet in this case. (DE# 4, 5, 7). Such "Objections" are disconnected in logic and grammar, refer to unrelated events, and are nonsensical.
In his request for relief in the Amended Complaint, Plaintiff mentions the "False Claims Act." (DE# 12 at 5). See 31 U.S.C. § 3729. The False Claims Act ("FCA") permits either the Attorney General or a private party to initiate a civil action alleging fraud on the United States. 31 U.S.C. § 3730(a-b). A private enforcement action under the FCA is called a qui tam action. United States ex rel. Eisenstein v. City of NY, 556 U.S. 928, 932 (2009); Vermont Agency of Nat. Resources v. United States ex rel. Stevens, 529 U.S. 765, 769 (2000). "The purpose of the [FCA] is to enhance the Government's ability to recover losses sustained as a result of fraud against the Government." Ridenour v. Kaiser-Hill Co., L.L.C., 397 F.3d 925, 930 (10th Cir.), cert. denied, 546 U.S. 816 (2005). It is unclear if Plaintiff is attempting to raise such a claim, but in any event, Plaintiff provides no factual support regarding any qui tam issues, nor any coherent explanation for such statutory reference. Plaintiff mentions identity theft in June of 1989, but fails to indicate what this might have to do with the FCA. Plaintiff has not pleaded any facts relating to anyone falsely claiming right to payment by the United States. Plaintiff's Amended Complaint is devoid of any facts that would state a claim under the FCA. Even with liberal construction, the Amended Complaint fails to state a plausible claim for relief.
Moreover, it is well-settled that pro se litigants, such as the present Plaintiff, may not represent the interests of the United States in a qui tam FCA action. See, e.g., United States ex rel. Brooks v. Lockheed Martin Corp., 237 F.App'x 802, 803 (4th Cir. 2007) (holding that qui tam FCA actions may "not be pursued pro se"); Under Seal v. Under Seal, 467 F.App'x 236 (4th Cir. Feb. 23, 2012) (same), cert. denied, 568 U.S. 826 (2012); United States ex rel. Milam v. University of Texas M.D. Anderson Cancer Center, et al., 961 F.2d 46, 49 (4th Cir. 1992). Summary dismissal is appropriate.
Plaintiff also mentions the "Privacy Act" (DE# 12 at 5). See 18 U.S.C. § 1028. To have a cause of action under the Privacy Act, a plaintiff must allege that specific disclosures (1) violated the Privacy Act; (2) were committed willfully or intentionally; and (3) adversely affected him. See 5 U.S.C. § 552a(g)(1)(D), (g)(4); Doe v. Chao, 435 F.3d 492, 500 (4th Cir. 2006). Plaintiff has failed to meet any of these three elements. See, e.g., Walker v. Gambrell, 647 F.Supp.2d 529, 536 (D.Md. July 16, 2009) (dismissing pro se claim under the Privacy Act). The Amended Complaint is devoid of any facts that would state a claim under such statute. Even with liberal construction, the Amended Complaint fails to state a plausible claim for relief. Summary dismissal is appropriate.
B. Frivolity
The Amended Complaint appears to lack any arguable basis in law or in fact, and therefore is subject to dismissal as frivolous. Denton, 504 U.S. at 31. Plaintiff's pleading is factually incoherent and legally baseless. Plaintiff has already been given an opportunity to amend his pleadings, and it is readily apparent that the deficiencies of the Amended Complaint would not be remedied by more specific factual pleading. Adams v. Rice, 40 F.3d 72, 76 n.1 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995). Plaintiff has filed an Amended Complaint whose meaning the Court cannot discern, even with liberal construction. Plaintiff's allegations are indecipherable and his exhibits appear to be irrelevant. Further amendment would be futile.
This case may also be duplicative of other pending cases recently filed by Plaintiff in this judicial district. The Fourth Circuit Court of Appeals has instructed that "district courts are not required to entertain duplicative or redundant lawsuits and may dismiss such suits as frivolous pursuant to § 1915(e)." Cottle v. Bell, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000) (per curiam) (citing with approval, Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992) (holding that "district courts may dismiss a duplicative complaint raising issues directly related to issues in another pending action brought by the same party"); Southern Holdings, Inc. v. Horry Cty., South Carolina, Case No. 4:02-1859-RBH, 2014 WL 11071017, *6 (D.S.C. June 11, 2014) (same); Paul v. de Holczer, Case No. 3:15-2178-CMC-PJG, 2015 WL 4545974, *6 (D.S.C. July 28, 2015) ("the instant Complaint should be summarily dismissed as a frivolous duplicate filing in the interest of judicial economy and efficiency"), affirmed, 631 F.App'x 197 (4th Cir. Feb. 4, 2016); Reynolds v. Third Circuit Pub. Def. Office, Case No. 4:17-cv-3469-BHH-MGB, 2018 WL 1322102, *5 (D.S.C. Feb. 6, 2018), adopted, 2018 WL 1124592 (D.S.C. Mar. 1, 2018) (summarily dismissing duplicate case as frivolous). Summary dismissal is appropriate.
C. Lack of Subject Matter Jurisdiction
Plaintiff's allegations are so disconnected and incoherent that it appears that subject matter jurisdiction may be lacking here. The United States Supreme Court has emphasized that federal-question jurisdiction requires that a party assert a substantial federal claim. Hagans, 415 U.S. at 536; Baker v. Carr, 369 U.S. 186, 199 (1962) (holding that if jurisdiction is based on a federal question, the plaintiff must show that he has alleged a claim under federal law that is not frivolous). Plaintiff has failed to do so. His nonsensical allegations are inadequate to allege a substantial federal claim, and it does not appear that further amendment would cure such pleading deficiency. As a result, this case should be summarily dismissed.
This federal court has an "independent obligation" to investigate the limits of its subject-matter jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The United States Supreme Court has explained that a court's obligation to examine subject-matter jurisdiction is triggered whenever that jurisdiction is "fairly in doubt." Iqbal, 556 U.S. at 671. It is well-settled that federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute. Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The burden of establishing jurisdiction rests upon the party asserting jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936). The two most commonly recognized and utilized bases for federal court jurisdiction are (1) "federal question," 28 U.S.C. § 1331, and (2) "diversity of citizenship." 28 U.S.C. § 1332. On the pre-printed complaint form, Plaintiff checks the box for federal question. (DE# 1 at 3, ¶ II "Basis for Jurisdiction"). He does not allege diversity jurisdiction. Although Plaintiff refers to several federal statutes, Plaintiff does not plausibly state any facts that would suggest a violation of those federal statute by the federal Defendants.
For example, Plaintiff lists 42 U.S.C. § 2000d and 42 U.S.C. § 3789 as the "basis for jurisdiction." The latter statute is now codified at 34 U.S.C. §§ 10227, 10228. Section 10228(a) sets forth the general rule that: "Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof." It is unclear why Plaintiff refers to this statute. In any event, to the extent such statutes prohibit discrimination, Plaintiff does not allege that he has been excluded from participation in, denied the benefits of, subjected to discrimination under any programs funded under such chapter (which is entitled "Justice System Improvement"). See, e.g., Horde v. Elliot, 2018 WL 987683, *13 (D.Minn. Jan. 9, 2018) (dismissing pro se allegations that referred to 42 U.S.C. § 3789).
Even though Plaintiff appears to assert federal question jurisdiction under several statutes, this court is not bound by Plaintiff's characterization because there are no facts alleged to support any cause of action under those federal statutes. When considering the issue of whether a case is one "arising under the Constitution," a federal court is not bound by a party's characterization of the case. District courts are authorized to disregard such characterizations to avoid "unjust manipulation or avoidance of its jurisdiction." Lyon v. Centimark Corp., 805 F. Supp. 333, 334-35 (E.D. N.C. 1992); see also Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908); Gully v. First Nat'l Bank in Meridian, 299 U.S. 109 (1936) ("Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.").
Thus, even though Plaintiff has checked the box for federal-question jurisdiction, this Court could properly disregard such unsupported assertion because no factual basis for federal question jurisdiction is actually presented in the Amended Complaint.
D. Sovereign Immunity
Plaintiff sues the following defendants: the U.S. Secret Service, U.S. Postal Service, Attorney General of United States, and the U.S. Attorney for the District of South Carolina. It is well-settled that federal agencies are entitled to sovereign immunity unless Congress waives immunity and consents to suit. Global Mail Ltd. v. U.S. Postal Service, 142 F.3d 208, 210 (4th Cir. 1998). Plaintiff may not sue the United States or its agencies without their consent. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (holding that suit against federal agency could not proceed); Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999) ("Bivens does not allow for recovery of money damages, or suits in general, against the government itself."). The same is true for actions brought against federal officials in their official capacities. Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996); Estate of Riopedre v. United States, 2015 WL 505584 (D.S.C. Feb. 6, 2015). Sovereign immunity deprives a court of jurisdiction. Global Mail Ltd., 142 F.3d at 210; United States v. Jones, 225 F.3d 468, 469 (4th Cir. 2000), cert. denied, 532 U.S. 1053 (2001). Such pleading deficiency cannot be remedied through more specific factual pleading. Rice, 40 F.3d at 76. Thus, absent any waiver or consent, the Amended Complaint against the federal agencies and individual federal officials in official capacity is subject to dismissal based on sovereign immunity.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (establishing a cause of action against federal officials for violation of federal constitutional rights).
E. Prosecutorial Immunity
Plaintiff sues the Attorney General of United States and U.S. Attorney for the District of South Carolina, but alleges no actions by such Defendants. If Plaintiff is attempting to complain about any actions taken by them in performing their official duties, any claim against such federal officials in their individual capacity are subject to summary dismissal. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) ("[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity."); Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (holding that prosecutors have immunity for performing functions "intimately associated with the judicial phase of the criminal process"); Nivens v. Gilchrist, 444 F.3d 237, 249-50 (4th Cir. 2006) (same); Redden v. McMaster, Case No. 8:08-2845-CMC-BHH, 2008 WL 4458877, *3 (D.S.C. Sept. 29, 2008) (emphasizing that prosecutors "have absolute immunity for activities in or connected with judicial proceedings").
F. With or Without Prejudice
The only remaining question is whether to dismiss this case with or without prejudice. Despite being given an opportunity to amend, Plaintiff filed an Amended Complaint that is incomprehensible and fails to state a plausible claim for which relief may be granted. The Fourth Circuit Court of Appeals has emphasized that a dismissal under Rule 12(b)(6) is generally with prejudice unless the court specifically orders that the dismissal is without prejudice (and provides an explanation for using its discretion to deviate from the general rule). Abdul-Mumit, et al. v. Alexandria Hyundai, LLC, et al, 896 F.3d 278, 2018 WL 3405474, *5 (4th Cir. July 13, 2018) (citing Carter v. Norfolk Community Hosp. Assoc., Inc., 761 F.2d 970, 974 (4th Cir. 1985)). Plaintiff's Amended Complaint fails to state a claim for which relief may be granted, is legally and factually frivolous, and seeks monetary damages against federal defendants who are immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). For these reasons, the Amended Complaint should be dismissed with prejudice.
"Unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean, 566 F.3d 396; Carter, 761 F.2d at 974 ("A district court's dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice."). Here, it appears that the legal deficiencies in the Amended Complaint would not be remedied by more specific pleading of facts. Rice, 40 F.3d at 76 n.1 (holding that dismissal with prejudice was therefore appropriate). The Fourth Circuit Court of Appeals has explained that "[o]nce a court has determined that the complaint is truly unamendable, a dismissal without prejudice is of little benefit to the litigant, as the claim cannot be made viable through reformulation." McLean, 566 F.3d at 399.
IV. Conclusion
In conclusion, the Amended Complaint fails to state a claim for which relief may be granted, is legally and factually frivolous, and seeks monetary damages against federal defendants who are immune from such relief. See 28 U.S.C. §1915(e)(2)(B). Therefore, the Amended Complaint should be dismissed with prejudice. Plaintiff has already had the opportunity to amend his initial Complaint. Given his failure to remedy the deficiencies of the initial Complaint, it appears that further amendment of the pleadings would be futile.
V. Recommendation
Accordingly, it is recommended that the Amended Complaint (DE#12) should be summarily dismissed with prejudice, and without issuance and service of process; alternatively, if the District Court determines that subject matter jurisdiction is lacking, the Amended Complaint may be dismissed without prejudice, and without issuance and service of process.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE October 17, 2018
Charleston, South Carolina
Plaintiff's attention is directed to the Important Warning on the following page:
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
Post Office Box 835
Charleston, South Carolina 29402
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).