Opinion
C/A 20-3036-DCC-SVH
08-02-2021
Randle Jackson, individually and as the Personal Representative for the Estate of Dashaun Simmons, Plaintiff, v. Anthony Howard Hall, Captain Reese, and Captain Livingstone, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Dashaun Simmons (“Decedent”) filed this action in the Richland County Court of Common Pleas against Anthony Howard Hall (“Hall”), Captain Reese (“Reese”), and Captain Livingstone (“Livingstone”) (collectively “Defendants”) on June 2, 2020, alleging violations of his constitutional rights while an inmate at the Broad River Correctional Institution (“BRCI”) of the South Carolina Department of Corrections (“SCDC”). Livingstone removed the action to this court on August 24, 2020.
This matter is before the court each Defendants' motion for summary judgment and motion for protective orders. [ECF Nos. 28, 29, 30, 31, 34, 35]. Also before the court are motions filed by Randle Jackson (“Jackson”), the personal representative for the Decedent, for discovery and to amend/correct the scheduling order. [ECF No. 39, 42]. Additionally, Reese has filed a motion to join Livingstone's response in opposition to Jackson's motions. [ECF No. 50].
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned recommends the district judge grant Defendants' motions for summary judgment, rendering all other motions moot.
I. Factual and Procedural Background
In his unverified complaint, Decedent alleged that in late June or early July 2017, the Marion Unit at BRCI was placed on lockdown following a riot between two rival gangs. [ECF No. 1-1 ¶ 10]. Decedent alleged that approximately three weeks later, he received threats from his fellow inmates and that he informed Reese and Livingstone about these threats and his fear he would suffer death or serious bodily injury if he remained in the Marion Unit. Id. ¶¶ 11-12. Decedent further alleged that around July 18, 2017, Hall opened the doors to multiple cells, including Decedent's, and other inmates entered Decedent's cell and attacked him, resulting in Decedent being hospitalized for 23 stab wounds and a broken jaw. Id. ¶¶ 14-15, 18. Hall allegedly witnessed the attack and did not intervene. Id. ¶ 16.
Livingstone has submitted affidavit evidence disputing Decedent's allegation that he informed her “of any specific threat to his health and safety from other inmates housed in the Marion Unit at BRCI.” [ECF No. 28-2 ¶ 5].
Hall has submitted a declaration, disputing Decedent's version of events, stating as follows:
Around 12 a.m. my Lieutenant came into Marion to check the unit and saw there were a few doors unlocked. As we went to the left side there was an inmate out and he was in the shower. I had no clue he was out, though I had locked all the doors but I missed some. Then around two a.m. I got a call saying that someone called and said I had an inmate out and he was bleeding. I then told my Lieutenant that I would do a security check of my unit. Did not notice nothing. Not until my Lieutenant and Sergeant, also a nurse, came down to do pill line on both side, that's when I saw the inmate.[ECF No. 30-1 ¶ 5]. Hall was arrested on September 18, 2017, for his alleged involvement in this matter and charged with misconduct in office and accessory before the fact of attempted murder. [ECF No. 17 at 2]. All criminal charges against Hall were nolle prossed on May 13, 2021. [See ECF No. 30-2].
Decedent received treatment for four days at Richland Memorial Hospital, was transferred back to BRCI to lockup rather than the medical unit, and was then, less than 24 hours later, readmitted to the hospital. Id. ¶¶ 18-20. Decedent alleged he experienced intense pain for the duration of his time at BRCI between hospital admissions and that he was released originally from the hospital too soon. Id. ¶ 20. Decedent was then transferred to Perry Correctional Institution (“PCI”). Id. ¶ 21.
Jackson has represented to the court that after his transfer to PCI, Decedent began to receive threats from a fellow inmate, and on April 7, 2019, he was attacked and suffered injuries including two stab wounds to the neck, multiple bites to the face, and fell down a flight of stairs. [ECF No. 19 at 2]. On January 2, 2020, Decedent filed suit in the Greenville County Court of Common Pleas, C/A No. 2020-CP-23-00011, against SCDC for the damages he sustained as a result of the April 7, 2019 attack. [ECF No. 36 at 2].
In support of Decedent's version of events, Jackson submitted a verified complaint from a state court action Decedent filed on September 12, 2018, against SCDC in the Richland County Court of Common Pleas, Simmons v. SCDC, C/A No. 2018-CP-40-04850, that contains largely the same allegations as above, but does not name Hall, only an “unknown officer.” [See ECF Nos. 36-1, 36-2; see also ECF No. 1-1 ¶ 33 (incorporating by reference all allegations found in Simmons v. SCDC into Decedent's instant complaint)].Jackson has additionally submitted multiple SCDC documents, in which Decedent repeatedly represented to others that Hall or an “officer” let inmates into Decedent's cell to attack the Decedent, and, following the incident, Decedent was extremely afraid. [See ECF Nos. 36-3, 36-4, 36-5, 366].
The court takes judicial notice of the Decedent's civil cases pending in state court, both of which remain pending. Courts “may properly take judicial notice of matters of public record.” Phillips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). “We note that the most frequent use of judicial notice . . . is in noticing the content of court records.” Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (internal quotations and citation omitted).
The discovery period in this matter began on October 8, 2020. [ECF No. 15]. On October 22, 2020, Hall, with the consent of all parties, moved this court for a stay of proceedings pending the resolution of Hall's criminal charges. [ECF No. 17]. The court denied without prejudice Hall's motion to stay. [ECF No. 18].
On November 17, 2020, a member of Decedent's family called Decedent's counsel to inform them that Decedent had been attacked while in the custody of the SCDC and died as a result of his injuries. [ECF No. 19 at 2]. On December 11, 2020, Decedent's counsel filed a motion to stay the instant case pending the appointment of a personal representative, informing the court as follows:
Counsel represents that despite the ongoing legal disputes between the parties, SCDC “did not notify [Decedent's] counsel of his death and has not provided any details of the circumstances surrounding his death.” [ECF No. 19 at 2].
As the plaintiff is now deceased, plaintiff's counsel is unable to obtain the information necessary to respond to discovery requests from the plaintiff. Additionally, as the probate court has not yet appointed a personal representative to manage the plaintiff's estate, plaintiff's counsel does not have a reliable contact from whom to gather that information. The plaintiff, therefore, respectfully requests that the Court enter an order staying the proceedings until a personal representative is appointed to manage the plaintiff's estate.Id. at 3-4.
On December 14, 2020, the court construed the motion to stay as a suggestion of death pursuant to Fed.R.Civ.P. 25 and ordered Decedent's counsel to serve a copy of its suggestion of death on any known nonparty successor or representative of Decedent and to file a motion for substitution within 90 days thereafter. [ECF No. 20]. The court also ordered as follows: “The court suspends the deadlines in the scheduling order pending service of the suggestion of death and expiration of 90 days thereafter.” Id. at 3.
At that time, the relevant scheduling order provided that discovery was due by May 5, 2021, and dispositive motions were due by May 20, 2021. [See ECF No. 15].
Decedent's counsel completed service of the suggestion of death in December 2020, [ECF No. 21-1], Jackson was appointed as the personal representative of Decedent's estate on February 10, 2021 [ECF No. 36 at 3], and on February 26, 2021, Jackson filed a motion for substitution, which the court granted. [ECF Nos. 22, 23].
On May 13 and 28, 2021, Jackson served discovery requests on Defendants and a subpoena on SCDC. [ECF No. 36 at 3, see also ECF Nos. 31-1, 31-2, 31-3]. From May 20, 2021, to June 7, 2021, each Defendant filed a motion for summary judgment and motion for protective order and/or to quash subpoenas. In the latter motions, Defendants argue, in part, that Jackson's discovery requests were served outside the discovery deadline.
Jackson opposes Defendants' motions, arguing in part that because the court suspended deadlines in the scheduling order pending service of the suggestion of death and expiration of 90 days thereafter, discovery has not yet run, discovery is necessary, and Defendants' motions for summary judgment are premature. Additionally, on June 11, 2021, Jackson's counsel filed a declaration entitled “Plaintiff's Rule 56(d) motion, ” seeking additional discovery [ECF No. 39], and a motion to correct or amend the scheduling order, in part requesting the court to extend the discovery deadline to November 8, 2021. [ECF No. 43 at 3].
Fed.R.Civ.P. 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) Defer considering the motion or deny it; (2) Allow time to obtain affidavits or declarations to take discovery; or (3) Issue any other appropriate order.”
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, 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, “[o]nly 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.” Id. at 248.
B. Analysis
As a threshold matter, Defendants argue Decedent failed to timely exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id. This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524.
Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original)). Thus, “it is the prison's requirements, and not the [PLRA], that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that Plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). However, “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Ross v. Blake, 136 S.Ct. 1850 (2018).
Here, the parties do not dispute that during the relevant time period, Decedent failed to pursue his administrative remedies. [See, e.g., ECF No. 28-3 ¶ 14 (affidavit of Sherman Anderson (“Anderson”), chief of the SCDC's inmate grievance branch, attesting that Decedent did not file grievances in June, July, or August of 2017)]. Thus, Defendants have met their burden of establishing that Decedent failed to exhaust his administrative remedies.
Jackson argues, however, (1) that Decedent was not required to exhaust his administrative remedies prior to filing the instant suit because “his life was in imminent danger, ” (2) “SCDC's lengthy grievance process would have afforded no protection or immediate remedy, ” and (3) “SCDC employees were directly involved in the attack on the decedent, ” therefore “the decedent had reason to fear SCDC staff just as much as he feared the inmates who attacked him.” [See, e.g., ECF No. 36 at 7-9].
In support of his first argument, Jackson cites to Patsy v. Board of Regents of the State of Florida, 457 U.S. 496 (1982). However, Patsy does not support Jackson's argument. See Patsy, 457 U.S. at 510 (“Section 1997e carves out a narrow exception to the general no-exhaustion rule to govern certain prisoner claims The exhaustion requirement is expressly limited to § 1983 actions brought by an adult convicted of a crime.”) (citations omitted)); see also, e.g., McFadden v. Westley, C/A No. 0:12-02392-JMC, 2014 WL 4104714, at *6 (D.S.C. Aug. 19, 2014), aff'd, 590 Fed.Appx. 285 (4th Cir. 2015) (“McFadden's reliance on Patsy is misplaced, as the Patsy Court clearly acknowledged the 42 U.S.C. § 1997e exception that created a specific exhaustion requirement for adult prisoners bringing actions pursuant to § 1983, ” further noting that the plaintiff had provided no evidence refuting the defendants' showing that he failed to properly seek review from the South Carolina Administrative Law Court regarding his claims).
Nor is SCDC's allegedly lengthy and limited grievance process a reason to excuse the requirement for exhaustion of administrative remedies. See, e.g., Booth, 532 U.S. at 741 (holding exhaustion is required even though the relief sought is not attainable through resort to the administrative remedy procedure); Faust v. Taylor, C/A No. 0:07-58-RBH, 2009 WL 2181684, at *1 (D.S.C. July 22, 2009), aff'd, 368 Fed.Appx. 401 (4th Cir. 2010) (“This court cannot waive the exhaustion requirement, which was specifically mandated by Congress, based on Plaintiff's perceived futility or inadequacy with the administrative grievance process.”); see also Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (“It is beyond the power of this court-or any other-to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.”) (citations omitted)).
Turning to Jackson's final argument, in Ross, the Supreme Court set forth three scenarios where the administrative process is considered “unavailable”: (1) the administrative process “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the administrative process is so opaque that no ordinary prisoner can discern or navigate through the process; and (3) the “administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation.” 136 S.Ct. at 185960.
Jackson has not argued, nor is there any evidence in the record, that any of these scenarios apply. The closest is the third, where the administrative process in unavailable when an inmate is unable to take advantage of the grievance process because of threats. However, there is no indication that Defendants threatened Decedent connected to the grievance process, only an argument that Decedent had a generalized fear of SCDC staff following the attack.
In addressing this issue, the Second Circuit has held as follows:
Here, Viola has alleged no more than a generalized fear of retaliation which is insufficient as a matter of law to support a finding that the grievance process was unavailable in order to overcome her failure to exhaust administrative remedies under the PLRA .... neither of those fears related to threats or intimidation in connection with the grievance process itself. Viola was never threatened, or even warned, by Foti or anyone else, not to complain or file a grievance, and Viola did not attempt to report Foti's misconduct to any official .... To hold otherwise would allow any inmate who was claiming that a prison guard violated § 1983 based upon an act of violence or other hostile act in the jail to avoid the PLRA exhaustion requirement because of a generalized fear that any grievance or complaint could lead to more violence by that guard. Neither the Supreme Court nor this Court has ever interpreted unavailability of the grievance process to be applied so broadly, and such an interpretation would thwart the language and purpose of the PLRA.Lucente v Cty. of Suffolk, 980 F.3d 284, 312-13 (2d Cir. 2020); see also McBride v. Lopez, 807 F.3d 982, 988 (9th Cir. 2015) (“There is no reason to allow inmates to avoid filing requirements on the basis of hostile interactions with guards when the interaction has no apparent relation to the use of the grievance system. Hostile interaction, even when it includes a threat of violence, does not necessarily render the grievance system ‘unavailable.'”).
As stated, Jackson has put forth evidence that Decedent, following the assault and transfer to PCI, was afraid concerning his ongoing safety [see ECF Nos. 36-3, 36-4, 36-5 (requesting protective custody), 36-6] but this evidence does not relate to any fear regarding the use of the grievance system.
Although not specifically concerning exhaustion, Jackson also argues generally that discovery has not concluded and additional discovery is needed before the court can address Defendants' motions for summary judgment. [See ECF No. 36 at 5 (arguing Jackson “has made efforts to conduct discovery in the decedent's cases for nearly four years, ” including the two that are still pending in state court, and has received some, but not all, the discovery requested)].
However, Jackson fails to identify any relevant, outstanding discovery as to the exhaustion issue, and there is no indication on the record before the court or based on the discovery still sought [see ECF No. 39 at 2-3, see also ECF Nos. 31-1, 31-2, 31-3, 34-1, 34-2, 35-1, 35-2] that Jackson can show that Decedent had any fear of retaliation based on the use of the grievance system. Indeed, Jackson fails to respond to Hall and Livingstone's arguments so asserting. [See ECF No. 48 at 3-4, ECF No. 49 at 4-5, see also ECF Nos. 51, 52].
Similarly, in Jackson's Rule 56(d) motion [ECF No. 39], the only outstanding discovery request specifically related to the issue of exhaustion concerns a request to depose Anderson. But this deposition would only confirm what Jackson does not dispute, that Decedent pursued no administrative remedies, and would not address the relevant exhaustion issues identified above. See, e.g., Synovus Bank v. Stevens L. Firm, No. 4:19-CV-01411-SAL, 2020 WL 6384653, at *3 (D.S.C. Oct. 30, 2020) (“[t]o satisfy Rule 56(d)'s mandates and obtain additional discovery, the nonmoving party “must specifically allege why the information sought would [be] sufficient to create a genuine issue of material fact such that it would [ ] defeat[ ] summary judgment”) (citing Strag v. Bd. of Trustees, Craven Cmty. College, 55 F.3d 943, 954 (4th Cir. 1995)).
This case stands in contrast to one recently decided by this court where it was also undisputed that the plaintiff failed to file any grievances. However, the plaintiff submitted affidavit testimony that “after his prison attack, he was told by the captain that [he] really didn't want to file or say anything because [he] was in SCDC and [he] had to live here. Upon hearing this, [he] was under the belief that [he] would be retaliated against and/or killed if [he] filed a grievance.” Drake v. S.C. Dep't of Corr., C/A No. 2:19-00574-JD, 2021 WL 2201205, at *4 (D.S.C. June 1, 2021) (holding the plaintiff had exhausted his administrative remedies and his claims were properly before the court).
This case is also distinguishable from those where, because of a plaintiff's death, he was unable to pursue administrative remedies, an issue not presently before the court. See, e.g., Anderson v. Cty. of Salem, C/A No. 094718, 2010 WL 3081070, at *2 (D.N.J. Aug. 5, 2010) (holding the decedent could not pursue administrative remedies because of his death and the PLRA exhaustion requirements do not apply to non-prisoners including the plaintiff as representative of the decedent's estate).
There is one additional issue to address. Jackson argues the PLRA exhaustion requirements do not apply in that he is not a prisoner and is instead the personal representative for decedent's estate. [See, e.g., ECF No. 36 at 9]. The Fourth Circuit, however, has held “it is the plaintiff's status at the time he filed the lawsuit that is determinative as to whether the § 1997e(a) exhaustion requirement applies.” Cofield v. Bowser, 247 Fed.Appx. 413, 414 (4th Cir. 2007) (holding that (1) the exhaustion requirement under the PLRA does not apply to a former prisoner; and (2) it is a plaintiff's status at the time he filed the lawsuit that is determinative); see also Norton v. The City of Marietta, OK, 432 F.3d 1145, 1150 (10th Cir. 2005) (“In light of the PLRA's plain language, the other circuits to have addressed the issue have unanimously held that it is the plaintiff's status at the time he files suits that determines whether § 1997e(a)'s exhaustion provision applies.”); Dixon v. Page, 291 F.3d 485, 489 (7th Cir. 2002) (“[P]laintiff's status as a ‘prisoner' is to be determined as of the time he brought the lawsuit.”).
Here, it is undisputed that Decedent was a prisoner when he filed the instant lawsuit, and, although he argues otherwise, Jackson's motion to substitute does not change the date by which Decedent had to exhaust his administrative remedies. Cf. Eady v. McKie, C/A No. 5:12-00368-JMC, 2012 WL 6009167, at *2 (D.S.C. Dec. 3, 2012) (rejecting former prisoner's argument that because he was released after filing his case, it would not be in the interest of judicial economy to require exhaustion of administrative remedies, where he would refile in response to a dismissal, noting “[s]everal United States circuit courts of appeals have held that an inmate's release from prison while his § 1983 action is pending does not exempt him from the PLRA's administrative exhaustion requirement.”) (collecting cases)); Creamer v. West, C/A No. 6:13-2388-MGL, 2015 WL 5008777, at *7 (D.S.C. Aug. 19, 2015) (rejecting argument that PLRA exhaustion does not apply because the plaintiff was not a prisoner when he filed his amended complaint); Drayton v. Cohen, C/A No. 2:10-3171-TMC, 2012 WL 666839, at *2 n.3 (D.S.C. Feb. 29, 2012) (“Plaintiff's filing an amended complaint does not change the date by which he had to exhaust his administrative remedies), aff'd, 474 Fed.Appx. 991 (4th Cir. 2012); but see, e.g., Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017)).
Jackson argues that his motion for substitution, filed on March 4, 2021, acted as an amendment to the complaint, replacing Jackson as Plaintiff in this instant case and rendering the PLRA exhaustion requirement inapplicable. [See ECF No. 36 at 9]. Jackson cites no case law on point to support his position, nor is the court aware of any. To the extent Jackson argues Jackson support his position, this case does not address the issue of substitution but of a prisoner supplementing his own complaint, is not binding on this court, and may be inconsistent with applicable Fourth Circuit's guidance and holdings from cases in this district, cited above.
Accordingly, the undersigned recommends the district judge grant Defendants' motions for summary judgment for failure to exhaust administrative remedies.
To the extent that Jackson asserts claims based on state law [see ECF No. 37 at 14-15], the undersigned recommends the district judge decline to exercise supplemental jurisdiction over them. See 28 U.S.C. § 1367(c).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motions for summary judgment [ECF Nos. 28, 29, 30], dismissing Plaintiff's claims without prejudice. To the extent the district judge accepts this recommendation, the undersigned further recommends all other pending motions be denied as moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).