Opinion
Civil Action 9:21-cv-00240-RMG-MHC
02-07-2022
Melvin Durant, Plaintiff, v. Dr. Phillips, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff, proceeding pro se and in forma pauperis, brought this action seeking relief pursuant to Title 42, United States Code, Section 1983. Before the Court is Defendant's Motion for Summary Judgment, filed on August 12, 2021. ECF No. 29. After receiving multiple extensions of time from the Court, see ECF Nos. 34 & 42, Plaintiff filed a Response in opposition on February 3, 2022, ECF No. 47. The Motion is ripe for review.
Plaintiff also named “Nurse Phillies” as a Defendant in his Amended Complaint. ECF No. 12. However, the Court dismissed the claims against her on January 4, 2022, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. See ECF No. 42. Therefore, the only Defendant remaining in this action is Defendant Phillips.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge.
I. BACKGROUND
A. Allegations in Plaintiff's Amended Complaint Plaintiff alleges the following facts in his unverified Amended Complaint, filed on March 8, 2021. ECF No. 12. Plaintiff alleges that on March 29, 2018, he filed a grievance “concerning 1 [his] suffering a stroke on 2/7/2018 and was scheduled to receive an MRI and asked to be seen.” Id. at 4. He also alleges that he filed another grievance on September 15, 2018. Id.
Plaintiff alleges that on November 20, 2018, he wrote to Defendant about bleeding on his brain, but Defendant failed to address his concerns. Id. He further alleges that on May 19, 2019, he sent another request to Defendant explaining how his condition was getting worse. Id. Plaintiff alleges that he sent numerous requests about getting orthopedic shoes, but he has not received them. Id. He notes that on November 13, 2019, he was scheduled for a sick call, but he was never seen to get the orthopedic shoes. Id.
In April 2020, Plaintiff's medications were renewed, but he alleges that did not receive his medications. According to Plaintiff, “[a]t no time have I received medical attention or any other services, as my documentation shows the meds have caused allergic reactions and they have not renewed medications or given me anything as my conditions have not gotten any better[, ] only worse[.]” Id. Plaintiff alleges that Defendant has consistently denied or refused to give him medical treatment, even after repeated requests for assistance about his deteriorating health, and, as a result, he has lost mobility. Id. at 4 & 7.
B. Evidence in the Record
Defendant is a Nurse Practitioner-not a medical doctor-named Dustin Phillips. Phillips Aff., ECF No. 29-2 at 2. Beginning on February 28, 2018, the South Carolina Department of Corrections (“SCDC”) employed Defendant as a nurse practitioner at Lee Correctional Institution (“Lee”). Id.
According to Plaintiff's SCDC medical records, Plaintiff presented to the Lee medical office in a wheelchair on December 28, 2017, with complaints of slurred speech and right arm and leg numbness and weakness. ECF No. 29-3 at 129. Plaintiff stated that he had high blood pressure 2 but was not taking his medications. Id. His blood pressure was 210/120 with a pulse of 102. Id. The nurse assessed Plaintiff as having stroke symptoms with elevated blood pressure. Id. The nurse practitioner employed at that time ordered medication and monitoring. Id. A doctor ordered additional medication and blood pressure checks one time per week for five weeks in the blood pressure clinic. Id. at 128.
A doctor examined Plaintiff in January 2018 and ordered new medications, lab work, and blood pressure checks one time per month for three months. Id. at 127-28. In February 2018, the doctor ordered an MRI of Plaintiff's brain. Id. at 126-27.
Defendant first evaluated Plaintiff on April 5, 2018. ECF Nos. 29-3 at 124-26; 29-2 at 3. At the time, Plaintiff complained that his right side felt heavy. Id. He ambulated without difficulty but had difficulty with fine motor skills. Id. Defendant ordered a neurology consult and a follow-up on the status of the MRI, but the SCDC medical director did not approve the neurology consult. Id.
The MRI of Plaintiff's brain and head was performed April 26, 2018, and showed a chronic lacunar infarct and mild chronic small vessel occlusive periventricular white matter changes. ECF Nos. 29-3 at 124; 29-2 at 4. Based upon these findings, Defendant ordered the neurology consult to be re-submitted. Id.
When Defendant evaluated Plaintiff on May 15, 2018, Plaintiff complained that his weakness was getting worse. ECF Nos. 29-3 at 123-24; 29-2 at 4. Plaintiff reported that he was on lockdown at another institution and did not receive his blood pressure medications. Id. Defendant concluded that Plaintiff was post cardiovascular accident. Id. Defendant prescribed new medications, ordered a cardiology consult and instructed Plaintiff to modify his lifestyle by stopping smoking and drinking, exercising, improving his diet and reducing his weight. Id. 3
On July 3, 2018, Plaintiff was evaluated at the Columbia Heart Clinic, where he was given an EKG and an echocardiogram. ECF No. 29-3 at 121-23; 29-2 at 4. The cardiologist prescribed heart and blood pressure medications. Id. Defendant evaluated Plaintiff on September 10, 2018, and ordered staff to send Plaintiff's lab work and MRI results to the cardiology office. ECF Nos. 29-3 at 116-19; 29-2 at 5. Defendant saw Plaintiff on October 8, 2018, because of a low potassium level and adjusted Plaintiff's medications. ECF Nos. 29-3 at 107-11; 29-2 at 5.
On October 10, 2018, Plaintiff was seen by a neurologist, who recommended that Plaintiff take Gabapentin and be given a bilateral carotid duplex ultrasound, which was performed on November 19, 2018. ECF No. 29-3 at 105, 135-36. Plaintiff signed a refusal form on November 16, 2018, because he refused to take Nortriptyline, stating that he was experiencing side effects. ECF No. 29-3 at 101. Plaintiff's lumbar spine was x-rayed on December 13, 2018, but no significant abnormalities were noted. ECF No. 29-3 at 137.
On January 23, 2019, Plaintiff told a nurse that he was not receiving all of his medications. Defendant instructed the nurse to notify the SCDC pharmacy that Plaintiff could keep Lipitor, Mobic, and aspirin “on his person.” ECF Nos. 29-3 at 84; 29-2 at 6. Defendant also requested another neurology consult, which was approved. ECF No. 29-3 at 87.
On April 17, 2019, Plaintiff was seen in the neurology clinic in follow-up. ECF No. 29-3 at 139-42. The neurologist diagnosed an LT thalamic stroke and thalamic pain syndrome and ordered Plaintiff to continue taking aspirin and Lipitor, as well as to take Gabapentin. Id. Upon return to SCDC, Plaintiff was started on Nortriptyline (the medication he had refused in November 2018) because Gabapentin was not on the SCDC formulary. ECF No. 29-2 at 7. 4
On May 1, 2019, Plaintiff was seen in follow-up at the cardiology clinic, where the cardiologist adjusted his medications. ECF No. 29-3 at 143-45. On May 23, 2019, Plaintiff signed a refusal form for a heart healthy diet, which he no longer wanted to eat. ECF No. 29-3 at 69-70. On May 30, 2019, Plaintiff discussed concerns about taking Nortriptyline with Defendant, but he decided to continue taking it. ECF Nos. 29-3 at 66-68; 29-2 at 6.
On August 28, 2019, Plaintiff returned to the neurology clinic, where the neurologist determined that Plaintiff no longer required neurologic follow-up. ECF No. 29-3 at 59, 146-48.
On September 5, 2019, Plaintiff told a nurse he had increased weakness and pain and wanted a second opinion regarding his spine. ECF No. 29-3 at 58. On September 26, 2019, he requested a full physical, ECF No. 29-3 at 53-54, and Defendant performed a full physical exam on Plaintiff on October 17, 2019. ECF Nos. 29-3 at 46-48; 29-2 at 8.
On November 27, 2019, Plaintiff requested orthopedic shoes because he had difficulty standing up on the right side for a long time, had a burning sensation to his right upper and lower extremities, and had a pair of Crocs that are difficult to walk in. ECF Nos. 29-3 at 41-43. Defendant examined Plaintiff on December 4, 2019, for complaints of weakness, continued his treatment plan, and recommended another neurology consult, which was approved. ECF Nos. 29-3 at 35-40; 29-2 at 8. Defendant did not believe that Plaintiff needed a podiatry consult for orthopedic shoes at that time. ECF No. 29-2 at 8.
On May 6, 2020, Plaintiff had a follow-up visit with the cardiologist, who instructed Plaintiff to continue with his treatment plan. ECF No. 29-3 at 22. In January 2021, Plaintiff requested Ibuprofen for general aches, which was approved. ECF No. 29-3 at 15. On March 2, 2021, Defendant requested a urology consult for Plaintiff, which was approved. ECF Nos. 29-3 at 11; 29-2 at 8. 5
II. LEGAL STANDARD
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed, and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. 6 Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendant moves for summary judgment on Plaintiff's claim pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 29. Defendant asserts that he is entitled to summary judgment because (1) he is entitled to Eleventh Amendment immunity; (2) Plaintiff has failed to show essential elements of his § 1983 claim for deliberate indifference to a serious medical need under the Eighth Amendment; and (3) he is entitled to qualified immunity. For the following reasons, the undersigned recommends granting Defendant's Motion.
A. Eleventh Amendment Immunity
To the extent Plaintiff's § 1983 claim is brought against Defendant in his official capacity, it is barred by the Eleventh Amendment. Under the Eleventh Amendment, federal courts are barred 7 from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).
Here, at all times relevant to Plaintiffs Amended Complaint, Defendant was employed by SCDC, a state agency. Therefore, to the extent Plaintiff is attempting suit against Defendant in his official capacity, Defendant is entitled to Eleventh Amendment immunity. See Will, 491 U.S. at 71 (reasoning “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office, ” and, “[a]s such, it is no different from a suit against the State itself). 8
See Simpson v. S.C. Dep't of Corr., No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting SCDC employees are entitled to Eleventh Amendment immunity in suits brought against them in their official capacities).
Moreover, for purposes of § 1983, Defendant acting in his official capacity is not considered a “person” amenable to suit. See Will, 491 U.S. at 71 (“Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Hafer v. Melo, 502 U.S. 21, 26-27 (1991).
B. Section 1983 Claim for Deliberate Indifference to a Serious Medical Need
To state a § 1983 claim, Plaintiff must demonstrate that Defendant, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001).
Plaintiff's claim, that a prison official failed to provide him adequate medical care, is an allegation that his Eighth Amendment rights were violated. Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (“[T]he Eighth Amendment imposes a duty on prison officials to ‘provide humane conditions of confinement . . . [and] ensure that inmates receive adequate food, clothing, shelter, and medical care.'”) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). To sustain his constitutional claim under 42 U.S.C. § 1983, Plaintiff must make (1) a subjective showing that Defendant was deliberately indifferent to his medical needs and (2) an objective showing that those needs were serious. Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (noting a “plaintiff must demonstrate that the officers acted with ‘deliberate indifference' (subjective) to the inmate's ‘serious medical needs' (objective)”); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (to state an Eighth Amendment claim, “a prisoner must allege acts or omissions sufficiently harmful to evidence [1] deliberate indifference to [2] serious medical needs” (emphasis added)).
The subjective prong of deliberate indifference is a “very high standard” and merely negligent behaviors do not meet the subjective mens rea requirement. Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). The Fourth Circuit has recognized two different aspects of an official's state of mind that must be shown to satisfy the subjective prong in this context: “First, actual knowledge of the risk of harm to the inmate is required” and, second, “the officer must also have recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” Iko, 535 F.3d at 241 (emphasis in original) (internal 9 quotation marks and citations omitted); see also Farmer, 511 U.S. at 837 (“[A] prison official cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).
As to the objective prong, a “serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (internal quotation marks omitted) (quoting Iko, 535 F.3d at 241).
It is undisputed that Plaintiff's LT thalamic stroke and thalamic pain syndrome were objectively serious medical conditions. However, Plaintiff has failed to identify evidence in the record that supports a § 1983 action against Defendant with regard to the subjective component of his Eighth Amendment claim.
As noted above, to prove deliberate indifference, Plaintiff must show Defendant knew of and disregarded an excessive risk to inmate health and safety. See Farmer, 511 U.S. at 837. Under this standard, “mere disagreements between an inmate and a physician over the inmate's proper medical care are not actionable absent exceptional circumstances.” Scinto, 841 F.3d at 225 (citation and internal quotation marks omitted).
Here, despite Plaintiff's allegation in his Amended Complaint that Defendant has consistently denied or refused to give him medical treatment, see ECF No. 12 at 4, the undisputed evidence in the record shows that Defendant repeatedly, over the course of months and years, provided Plaintiff medical care for his serious health conditions. Indeed, Defendant attested-and Plaintiff does not dispute-that Defendant, upon evaluation of Plaintiff, ordered at least three 10 neurology consults, one cardiology consult, and one urology consult; consistently monitored and adjusted Plaintiff's medications; and ordered that Plaintiff be allowed to keep certain medications “on his person.” See ECF No. 29-2.
In his Response, Plaintiff appears to disagree with various details of his course of treatment, claiming that “throughout this time, Plaintiff was being denied adequate treatment for [his] condition.” ECF No. 47 at 2; see Id. at 1 (arguing that the “first initial treatment failed to address the stroke and symptoms associated with this condition”). Specifically, Plaintiff points to the notes from the April 2019 neurology consult where the neurologist diagnosed Plaintiff with thalamic stroke and thalamic pain syndrome and advised that Plaintiff should be started on Gabapentin, noting that “Mobic is not adequate for neuropathic pain.” ECF Nos. 29-3 at 139; 47 at 1-2. Plaintiff argues that Defendant, as a nurse practitioner, should have known that “this medication was not adequate to treat Plaintiff['s] condition.” ECF No. 47 at 2. Plaintiff complains that Defendant “was not providing any medication for stroke, but giving Plaintiff aspirin for pain and Lipitor for cholesterol, as well as blood pressure, ” and that Defendant did not prescribe Nortripyline for his stroke until December 2019. Id.
As an initial matter, some of Plaintiff's arguments are unsupported by the medical records.Regardless, however, even if there were evidence to support all of these allegations, Plaintiff's disagreement with his course of treatment does not set forth an actionable claim under the Eighth Amendment. See Wright, 766 F.2d 841, 849 (4th Cir. 1985) (“Disagreements between an inmate 11 and a physician over the inmate's proper medical care do not state a § 1983 claim unless exceptional circumstances are alleged.”).
The evidence in the record shows that Plaintiff was prescribed Nortriptyline at least as early as November 2018. Indeed, Plaintiff signed a refusal form on November 16, 2018, because he refused to take Nortriptyline, stating that he was experiencing side effects. ECF No. 29-3 at 101. Record evidence also shows that Gabapentin was not on the SCDC formulary and that Nortriptyline was prescribed in its place. ECF No. 29-2 at 7.
Plaintiff has not alleged any exceptional circumstances that would make his claim actionable under § 1983.
At most, Plaintiff's allegations constitute a claim of medical malpractice, which falls short of violating Plaintiff's Eighth Amendment rights. See Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). These claims fall well below the threshold necessary to show deliberate indifference to a serious medical need in violation of the Eighth Amendment. See Campbell v. Florian, 972 F.3d 385, 395 (4th Cir. 2020) (“[D]eliberate indifference is a form of mens rea (or ‘guilty mind') equivalent to criminal-law recklessness.”), as amended (Aug. 28, 2020); Grayson v. Peed, 195 F.3d 692, 696 (4th Cir. 1999) (noting deliberate indifference requires “more than ordinary lack of due care for the prisoner's interests or safety”). Accordingly, the undersigned recommends that summary judgment be granted. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) 12 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”).
Plaintiff does not discuss in his Response his claim related to the alleged failure to provide him with orthopedic shoes, see ECF No. 47, and the undersigned finds the record evidence insufficient to establish a constitutional violation based on that claim. First, “several courts have held that nonspecific foot pain . . . [is] not a sufficiently serious medical issue as to warrant Eighth Amendment protection.” Owens v. SCDC, No. CIVA 8:09-278-GRA, 2009 WL 4807005, at *6 (D.S.C. Dec. 8, 2009) (unpublished) (collecting cases). Moreover, none of the medical providers who examined Plaintiff-including the neurologists and cardiologists-ordered, prescribed, or recommended orthopedic shoes to treat Plaintiff's stroke symptoms, and Plaintiff's mere assertions that he required orthopedic shoes are not enough to establish a viable claim. See Estelle, 429 U.S. at 107- 08 (explaining that a plaintiff's mere contention that more should have been done by way of diagnosis and treatment was insufficient to state a cognizable § 1983 claim, and noting that a medical decision to not pursue an avenue of treatment does not represent cruel and unusual punishment); Owens, 2009 WL 4807005, at *7 (“Plaintiff's disagreement with the Defendants' conclusion that the other shoes were not medically necessary simply does not amount to a constitutional violation.”); see Thomas v. Herrera, No. C.A.C-04-619, 2005 WL 3307528 at *6 (S.D. Tex. Dec. 6, 2005) (unpublished) (holding that plaintiff's disagreement with doctor's failure to prescribe him special work boots was not a cognizable constitutional claim and explaining that “even if plaintiff could establish that orthopedic boots were appropriate, his claim would amount to no more than negligence, which is not actionable”).
C. Qualified Immunity
Defendant also is entitled to qualified immunity from Plaintiff's claim. The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendant here. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).
“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).
As set forth in detail above, Plaintiff has failed to establish a genuine issue of material fact on any of his allegations of constitutional violations. Because Defendant did not violate Plaintiff's constitutional rights, he is also shielded from liability by qualified immunity. 13
IV. CONCLUSION
For the reasons set forth above, the undersigned RECOMMENDS that Defendant's Motion, ECF No. 29, be GRANTED and this action be DISMISSED. It is so RECOMMENDED
The parties are referred to the Notice Page attached hereto. 14
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). 15