Opinion
C. A. 5:23-1754-CMC-KDW
07-12-2024
Terrell Nelson, #310610, Plaintiff, v. Capt. Laskey; Lt. Myers; Lt. Bryzenski; Cpl. Salazar; Deputy Warden Palmer; Nurse Samantha Burdette; Warden Anthony Burton; and Lieutenant McCurry, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Terrell Nelson (“Plaintiff”), proceeding pro se and in forma pauperis, is an inmate with the South Carolina Department of Corrections (“SCDC”). On April 27, 2023, Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that on February 21, 2021, the named Defendants violated his constitutional rights afforded to him under the Eighth Amendment by exhibiting excessive force and subsequently failing to provide him adequate medical attention. At the time of the allegations forming the basis of Plaintiff's Complaint, Plaintiff was housed at Perry Correctional Institution (“PCI”) but was transferred the following day to McCormick Correctional Institution (“MCI”). ECF No. 1. This matter is before the court on Defendants' Motion for Summary Judgment filed on October 17, 2023. ECF No. 47. Plaintiff filed a Response in Opposition to Defendants' Motion on November 6, 2023. ECF No. 51. Defendants filed a reply. ECF No. 52. This matter is now ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters be referred to a United States Magistrate Judge. Because Defendants' Motion is dispositive, the undersigned enters this Report for the district judge's consideration.
I. Factual Background
Defendants' use of force is related to the placement of restraints on Plaintiff after an incident that occurred at PCI. Both Plaintiff and Defendants agree that on February 21, 2021, while Plaintiff was housed in the RHU at PCI, one or more Defendants used some measure of force in an interaction with Plaintiff that occurred in his cell. ECF No. 1-1 at 1; ECF No. 47-1 at 5. The remaining circumstances surrounding the events giving rise to Plaintiff's Complaint are at issue in this case.
Plaintiff's version of events are as follows: on February 21, 2021, Plaintiff was asleep in his cell when a disturbance ensued. ECF No. 1-1 at 1. Plaintiff alleges that Defendants Captain Lasley, Lt. Myers, Lt. Burzinski, and Cpl. Salazar came to his door, put him in full metal restraints and shackles and leg shackles, and asked Plaintiff to “strip out.” ECF No. 1-1 at 1. Plaintiff spoke with Defendant Burzinski and explained to him that he was unable to get out of his jumpsuit while in handcuffs and shackles. ECF No. 1-1 at 1; ECF No. 51 at 3. Defendant Burzinski in turn spoke to Defendants Salazar and Myers, as well as another officer before they “snatched his lead chain very hard and violently,” which caused injury to his right arm, wrist, fingers, and right shoulder. Id. at 2. Plaintiff was then left bleeding in his room with a broken arm and injured shoulder. ECF No. 1-1 at 2. Plaintiff then blacked out for some period of time before he woke up, saw an officer at his cell door, and was forcefully handcuffed with his arm still being broken and brought to the nurse. ECF No. 1-1 at 3. Plaintiff acknowledges there was toilet water covering the floor from “someone else's overflowing toilet on the wing.” Id.
Based on Defendants' Motion and corresponding affidavits, it appears the correct spelling of Defendant Bryzenski is David Burzinski and Defendant Laskey is Thomas Lasley. See ECF No. 47-1 at 5; 11. The court will use the correct spelling of each of their names in this Report.
Alternatively, in his Response, Plaintiff states that Defendant Burzinski slammed Plaintiff's body against the wall, causing Plaintiff to break his arm. Pl.'s Br. at 3; ECF No. 51.
In Plaintiff's Response, he further alleges that Defendant Burzinski slammed his body so hard against the door that the force broke his arm and caused blood to squirt everywhere. Pl.'s Br. at 3; ECF No. 51. Plaintiff further alleges that Defendants cut his jumpsuit off of him, causing him to bleed. Id. at 3-4. Plaintiff states Defendants then sprayed him with a fire extinguisher and left him in the room. Id. at 4.
Plaintiff's recalls a nurse indicated he needed to go the hospital; however, Defendant Lasley cancelled the transport to the hospital. ECF No. 1-1 at 4-5. Plaintiff alleges Defendants refused him medical treatment and mental health medication. Id. at 5. According to Plaintiff, the head nurse contacted Defendant Nurse Burdette, a nurse employed at MCI, to inform her they were transferring an inmate with “a little excessive use of force.” ECF No. 1-1 at 7. Once the head nurse left the area where Plaintiff was located, Plaintiff alleges Defendant Warden Palmer snatched the cuffs holding his arms and stepped on his right leg and ankle exacerbating a pre-existing injury. Id. Plaintiff alleges that despite the head nurse suggesting Plaintiff be transferred to the hospital, Defendant Palmer chose to transfer Plaintiff directly to MCI the next day. Id. at 8. Once at MCI, Plaintiff alleges that Defendant Nurse Burdette would not send him to the hospital. Id. Instead, she wrapped his arm in an ace bandage. Id. Plaintiff further alleges he sought mental health treatment but has been denied medical attention. Id. at 8-9. Plaintiff alleges he sent multiple grievances regarding the lack of medical attention to detention center staff. Id. at 9.
Plaintiff also alleges that this nurse, referred to as “Nurse Jane Doe,” refused to provide Plaintiff adequate medical care. Pl.'s Br. at 6; ECF No. 51.
Defendants' version of events differs substantially from Plaintiff's recounting of the incident that occurred on February 21, 2021. Their version of events, recounted in several affidavits, are attached to Defendants' Motion for Summary Judgment, along with video evidence of the day in question. Defendants assert that on February 21, 2021, several inmates, including Plaintiff, became upset because another inmate had not received his food tray. According to Renea Burnside, an employee at PCI in February 2021, after she volunteered to pick up food trays in the RHU where Plaintiff was housed, she heard inmates yelling and banging on their cell doors. See Affidavit of Renea Burnside, attached as Exhibit 2 to Defs.' Motion at ECF No. 47-2. Plaintiff, along with other inmates, refused to return their trays to Ms. Burnside. See Burnside Aff., ¶ 2. A short time later, Plaintiff and other inmates began stuffing items in their toilets, causing the toilets to back up and flood their cells. Burnside Aff., ¶ 3, As a result, employees turned off the water to these cells. See Burnside Aff., ¶ 3; see also Affidavit of Giddel Salazar, attached as Exhibit 5 to Defs.' Motion at ECF No. 47-5. Plaintiff then started a fire in his cell, causing another officer to use a fire extinguisher to put out the fire. See Burnside Aff., ¶ 4; See Salazar Aff., ¶ 6. Once the fire was extinguished and the smoke cleared, Plaintiff and the other inmates in his wing were “placed on control cell.” See Burnside Aff., ¶ 4. In Defendant Salazar's affidavit, he explains that “control cell” is where an inmate's property is removed from the cell. See Salazar Aff., ¶ 5.
Defendant Burzinski also provided an affidavit. In his affidavit, he states that on February 21, 2021, he learned that multiple inmates in the RHU were flooding their cells, and Plaintiff had started a fire in his cell. See Affidavit of David Burzinski, attached as Exhibit 3 to Defs.' Motion at ECF No. 47-3. As a result, he went to the RHU to assist other officers in placing inmates “on control cell.” See Burzinksi Aff., ¶ 4. Defendant Burzinski explained that inmates housed in the RHU must first be placed in restraints prior to exiting their cell. See Burzinski Aff., ¶ 4. The process includes the inmate placing his back against the cell door, and a retrieval chain being put in place, which has a handcuff attached to a length of chain with a metal bar on the opposite end. See Burzinski Aff., ¶ 4. The inmate is also placed in handcuffs and leg irons. See Burzinski Aff., ¶ 4. According to Defendant Burzinski, Plaintiff initially complied with the placement of the retrieval chain; however, he then ignored instructions to remove his jumpsuit. See Burzinski Aff., ¶ 5; See also Salazar Aff., ¶ 8. Defendant Burzinski states that Plaintiff then began to pull away from the officer, resulting in Defendant Burzinski ordering the slack to be removed from the chain and for other officers to pull Plaintiff's arm to the cell door. See Burzinski Aff., ¶ 5. Defendant Burzinski and other officers then used the retrieval chain to pull Plaintiff's arm through the cell door flap while Plaintiff continued to actively resist and pull back against the retrieval chain. See Burzinski Aff., ¶ 5. Defendant Burzinski states that the officers wanted to ensure Plaintiff was not able to pull the retrieval chain into his cell and use it as a weapon. See Burzinski Aff., ¶ 5. Defendant Burzinski recalls that Plaintiff was seen by medical personnel without incident. See Burzinski Aff., ¶ 6. In Defendant Burzinski's and Defendant Salazar's opinion, the officers used the least amount of force possible to restrain Plaintiff, and they did not observe any obvious deformity to Plaintiff's arm. See Burzinski Aff., ¶¶ 7-8; See Salazar Aff., ¶¶ 11-12. Defendant Kenneth Myers also provided an affidavit, and his version of events substantiate the event as described by Defendants Burzinki and Salazar. See Affidavit of Kenneth Myers, attached as Exhibit 6 to Defs.' Motion at ECF No. 47-6. Defendant Lasley's affidavit indicates that he was not involved and did not have a recollection of the incident involving Plaintiff. See Affidavit of Captain Thomas Lasley, attached as Exhibit 7 to Defs.' Motion at ECF No. 47-7. Attached to Defendant Burzinki's affidavit is video footage from February 21, 2021. The videos capture a partial view of the use of force incident, as well as the medical care provided to Plaintiff after the officers were able to remove him from his cell.
Plaintiff disputes that he was a recalcitrant inmate. Rather, Plaintiff states that he was unable to remove his jumpsuit because he had been placed in leg irons and handcuffs. Defendants maintain Plaintiff had not yet been placed in these restraints. Video evidence from the event in question supports Defendants' recollections. See Video 1, attached as Exhibit 1 to Burzinki's Affidavit, and Exhibit 4 to Defs.' Motion at ECF No. 47-4.
Video evidence provided by Defendants reflect the fact that Plaintiff was seen the same evening as the incident and provided medical attention.
II. Standard of Review
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. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc.Servs., 901 F.2d 387, 391 (4th Cir. 1990).
III. Analysis
1. Failure to State a Claim as to Defendant Anthony Burton
Rule 8 of the Federal Rules of Civil Procedure requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 is to allow any named defendants to have “fair notice” of the claims and the grounds upon which they rest. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Defendants argue that Plaintiff fails to assert facts upon which relief may be granted as to Defendant Anthony Burton. The only discernible allegation made against Defendant Burton is that this Defendant denied Plaintiff's grievance regarding inadequate medical care allegedly provided to Plaintiff. See ECF No. 1-1 at 9. Plaintiff does not respond to this argument in his Response. Under 42 U.S.C. § 1983, relief may be sought when a plaintiff alleges the violation of a right secured by the Constitution by a person acting under color of state law. West v. Askins, 487 U.S. 42, 48 (1988). To establish liability under § 1983, a plaintiff ordinarily must show that the defendant was personally involved in the violation. Here, Plaintiff does not allege that Defendant Burton was involved in either the alleged use of excessive force or the denial of medical care. Instead, he generally asserts that Defendant Burton, an officer at MCI, where Plaintiff was transferred after the alleged incident, denied a grievance he sent. However, the Constitution does not create an entitlement to grievance procedures or access to any such procedure established by a state. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); see also Brown v. G.P. Dodson, 863 F.Supp. 284, 285 (W.D. Va. 1994) (“[i]nmates do not have a constitutionally protected right to a grievance procedure.”). The undersigned therefore agrees that the action should be dismissed as to Defendant Burton for failure to state a claim against him.
Plaintiff also named Defendant McCurry, who Plaintiff identifies as a lieutenant at MCI, where he was transferred after the alleged use of excessive force. The allegations lodged against Defendant McCurry are that he and a Sgt. B. Phillips transported Plaintiff from PCI to MCI. ECF No. 1-1 at 6. Plaintiff further alleges that the head nurse asked Defendant McCurry to provide her Defendant Nurse Burdette's contact information. Id. Plaintiff does not allege Defendant McCurry had any other involvement in the allegations he believes gives rise to his constitutional claims. Defendant McCurry did not seek dismissal pursuant to Rule 8. Nevertheless, the undersigned is unable to identify any constitutional violations lodged against Defendant McCurry in Plaintiff's Complaint and recommends this action be dismissed against him for failure to state a claim.
2. Supervisory Liability
Defendants argue that Plaintiff fails to establish any claim against Captain Lasley. In Defendant Lasley's affidavit, he indicates he was never personally involved in this matter. See Lasley Aff., ¶¶ 2-3. While Plaintiff specifically names Defendant Lasley as being at PCI on the day of the alleged excessive use of force, Plaintiff ascribes no conduct or action on the part of Defendant Lasley during the use of force incident. The only specific allegation made against Defendant Lasley is that he did not allow for Plaintiff to be transported to the hospital. Supervisory officials may be held liable in certain circumstances upon a “recognition that supervisory indifference or tacit authorization of subordinates' misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)). To establish supervisory liability under § 1983 one must show: (1) the “supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable risk' of constitutional injury”; (2) the “supervisor's response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,'”; and (3) there was an “affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at 799 (internal citation omitted). Here, it appears Plaintiff simply named Defendant Lasley because he was a Captain and he determined that Plaintiff did not need to be transferred to the hospital. However, as noted above, the position of a supervisor is insufficient to establish liability. Further, the decision not to transfer Plaintiff to the hospital was not an outright denial of medical care. Indeed, Plaintiff's medical records show he was provided medical care the same day as the use of force incident. Thus, the undersigned recommends finding summary judgment in favor of Defendant Lasley as to any claims brought in his position as supervisor. However, the undersigned has also considered whether Plaintiff brings any claims against Defendant Lasley for deliberate indifference to medical care.
3. Eleventh Amendment
Defendants argue that, to the extent they were sued in their official capacity, Eleventh Amendment Immunity applies. The Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. CONST. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens, as well as suits by citizens of another State. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001). Eleventh Amendment immunity also extends to “arms of the State” and state employees acting in their official capacity. Doe v. Coastal Carolina Univ., 359 F.Supp.3d 367, 378 (D.S.C. Jan. 9, 2019). Relatedly, the Supreme Court has held that neither a State nor its officials acting in their official capacities are “persons” under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Here, Defendants argue that they are state employees and therefore precluded from suit in their official capacity. Plaintiff does not respond to this argument. The undersigned agrees with Defendants and recommends finding that the Eleventh Amendment precludes suit against these Defendants in their official capacity.
4. Exhaustion of Administrative Remedies
Defendants argue Plaintiff failed to exhaust his administrative remedies as to his excessive force claim, which is a prerequisite to filing suit pursuant to 42 U.S.C. § 1983. The Prison Litigation Reform Act (the “PLRA”), 42 U.S.C. § 1997e(a), provides that “[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.” 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 all available administrative remedies. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739).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). A defendant has the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005).
In their Motion, Defendants state that “Plaintiff in his Complaint claims that it is improper to strip search inmates in RHU each time they exit or return to their cells.” Defs.' Motion, ECF No. 47-1 at 25. However, Defendants then discuss the grievance in terms of a use of force review. The undersigned has analyzed it as such.
The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court[.]” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id. Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original)).
Defendants attached the affidavit of Felecia McKie, the Agency Inmate Grievance Coordinator/Branch Chief for the Inmate Grievance Branch for the SCDC. Ms. McKie explains that the initial step in the grievance process is to file a Step One Grievance. Affidavit of Felecia McKie, attached as Exhibit 13 to Defs.' Motion at ECF No. 47-13. If an inmate disagrees with the decision rendered to the Step One Grievance, an inmate can file a Step Two Grievance. See McKie Aff., ¶ 6, ECF No. 47-13. If the inmate disagrees with the disposition of the Step Two Grievance, an inmate may appeal to the Administrative Law Court. See McKie Aff., ¶ 6, ECF No. 47-13. Additionally, Ms. McKie explains that SCDC's Inmate Grievance System requires inmates to attempt to informally resolve their issue or concern via a Request to Staff Member Form prior to initiating the grievance process. See McKie Aff., ¶ 7. Inmates are required to attach a copy of their Request to Staff Member Form documentation to their Step Once Grievance to show their attempt at informal resolution. See McKie Aff., ¶ 7. Failure to attach this documentation will result in the return of the Step One Grievance to the inmate with instruction to submit the Request to Staff Member Form within eight days. See McKie Aff., ¶ 7.
Ms. McKie states that on February 25, 2021, Plaintiff filed a grievance, numbered MCCI-58-21 (but was assigned number PCI-208-21 because Plaintiff transferred from PCI to MCI the day after the incident in question) related to the use of force incident. See McKie Aff., ¶ 8. Ms. McKie states that Plaintiff was informed that the grievance was transferred to the Use of Force (Review) Team due to the nature of the grievance. See McKie Aff., ¶ 9. The Use of Form Team indicated that they reviewed the report, as well as video and incident reports related to the incident and found no evidence of excessive force. See McKie Aff., ¶ 10. Plaintiff's grievance was also returned to Plaintiff because he failed to attach documentation showing that he participated in an informal resolution of his grievance. See McKie Aff., ¶ 11. Ms. McKie states that this is required by SCDC policy under normal grievance procedures. See McKie Aff., ¶ 11. Ms. McKie states that Plaintiff was informed he could submit a new grievance related to this incident within five days of receiving a response to his Request to Staff Member Form, and that if Plaintiff was going to submit a new grievance, he must attach a copy of PCI-208-21 to the new grievance. See McKie Aff., ¶ 12. Plaintiff filed a second grievance; however, this grievance was again returned to Plaintiff for failure to follow the procedure as explained to him upon his first submission. See McKie Aff., ¶ 13. According to Ms. McKie, Plaintiff did not provide a Request to Staff Member Form, instead stating he did not believe a Request to Staff Member Form was necessary for a grievance when related to a use of force claim. See McKie Aff., ¶ 13. Defendants argue that Plaintiff has failed to exhaust the remedies available as to this claim. Plaintiff's only reference to the grievance procedure in his response is that he indicates he submitted grievance and request to staff member forms, as well as his medical records. Pl.'s Br. at 9; ECF No. 51. Many of the grievances attached to Plaintiff's Response are related to the medical care provided after February 21, 2021 and Defendants do not contend that Plaintiff did not properly grieve the issues related to his medical care.
While Ms. McKie's affidavit indicates that she attached a copy of the initial grievance, PCI 208-21, to her affidavit, the court does not find that any such grievance was submitted attached to her affidavit. Nevertheless, Plaintiff also submitted copies of these grievances, and the undersigned relies upon the grievance documents submitted by Plaintiff. Within the documents submitted by Plaintiff, there is a Request to Staff Member Form, dated February 25, 2021, wherein Plaintiff alleges he was injured by officers while “complying with being restrained.” See Exhibit A attached to Pl.'s Br. at ECF No. 51-1. In the area titled, “Disposition by Staff Member,” someone wrote “[t]hank you, but this is not needed for a use of force grievance. I did make a copy for your file.” Id. The form was signed and dated March 2, 2021. Id. This form does not have a number assigned to it. Both the initial grievance form and the Request to Staff Member Form were dated on the same day; thus, the argument may be properly understood that because Plaintiff failed to receive a response to his Request to Staff Member Form prior to filing his initial grievance (and by extension, failing to attach it to his initial grievance, PCI 208-21), the initial grievance was denied. However, by March 2, 2021, prior to filing the second grievance, it is readily apparent why Plaintiff believed a Request to Staff Member Form was not necessary for an inmate attempting to grieve an excessive use of force claim; indeed, that is exactly what was written on his Request to Staff Member Form when Plaintiff went that route. See ECF No. 51-1 at 2. “[A]n 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 Stenhouse v. Hughes, No. 9:04-23150, HMH-BHH, 2006 WL 752876, at *2 (D.S.C. Mar. 21, 2006) (“[E]xhaustion may be achieved in situations where prison officials fail to timely advance the inmate's grievance or otherwise prevent him from seeking administrative remedies.”) (quoting Abney v. McGinnis, 380 F.3d 663, 667 (2nd Cir. 2004)). The undersigned finds that Plaintiff was, perhaps inaccurately, told via the response to his Request to Staff Member Form that “this,” referring to the form, was not needed for a “use of force grievance” and that a copy was being placed in the file. Through no fault of his own, it appears Plaintiff was inadvertently prevented from following the proper steps to advance his grievance because he believed he was following the right protocol. For this reason, the undersigned does not find that Plaintiff failed to properly exhaust the excessive use of force claim in that a Request to Staff Member Form was not required for this type of claim. The undersigned will now consider the merits of Plaintiff's claims.
5. Excessive Use of Force
In his Complaint, Plaintiff generally alleges that Defendants Captain Lasley, Lieutenant Myers, Lieutenant Burzinski and Corporal Salazar used excessive force against Plaintiff while he was incarcerated at PCI. Plaintiff does not otherwise allege Defendant Lasley was personally involved in the excessive use of force claim. Defendants argue that they are entitled to summary judgment as to this claim.
The Eighth Amendment prohibition of cruel and unusual punishment “protects inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). To establish a constitutional excessive force claim, the inmate must establish that the “prison official acted with a sufficiently culpable state of mind (subjective component); and [that] the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component).” Iko v. Shreve, 535 F.3d, 225, 238 (4th Cir. 2008) (citing Williams, 77 F.3d at 761). Thus, courts must analyze both a subjective and an objective component. For the subjective component, Plaintiff must prove that Defendants assaulted and restrained him “maliciously and sadistically for the very purpose of causing harm” rather than in a good-faith effort to maintain or restore discipline. Whitley v. Albers, 475 U.S. 312, 320-21 (1986).
The Fourth Circuit has instructed that district courts use the following test in order to analyze the subjective component of the excessive force for Plaintiff's cause of action:
(1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) “any efforts made to temper the severity of a forceful response.”Iko v. Shreve, 535 F.3d at 239. To establish the objective component, Plaintiff must show that “the alleged wrongdoing is objectively ‘harmful enough' to establish a constitutional violation” in the context of “contemporary standards of decency.” Hudson v. McMillian, 503 U.S. 1, 2 (1992). When prison officials maliciously and sadistically use force to cause harm, there always exists a constitutional violation regardless of whether a significant injury is present. Id. at 9; see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
Most helpful in assessing this claim are the videos provided by Defendants that capture at least part of the incident in question. Some of the videos show Plaintiff being treated at the medical area after the incident, but at least one video shows part of the interaction at Plaintiff's cell. The video of the incident begins at the point where one or more officers are pulling on the retrieval chain as described in the affidavits of Defendants Burzinski, Salazar and Myers. See Video 1 at:02-:14, attached as Exhibit 4 to Defs.' Motion at ECF No. 47-4. Notably, Plaintiff does not appear to be in immediate pain while the officers are initially pulling on the retrieval chain. The officers have their heads facing down, and they appear focused on securing the retrieval chain. See Video 1 at:02-:14. The officers then enter the cell to restrain Plaintiff. See Video 1 at:18-:38. Plaintiff does not immediately vocalize any pain when Defendants enter his cell. See id. In the second video, an officer is depicted returning to Plaintiff's cell. This officer allows Plaintiff to try being placed in handcuffs while facing the front of his cell (as opposed to turning backward), because Plaintiff was complaining of pain to his arm and holding his hand. See Video 2 at:20-40. In this video, Plaintiff appears to obviously be in some sort of pain, and he indicates that being placed in the restraints is painful. See Video 2 at 2:20-3:00. The third video depicts a lieutenant explaining the use of force incident. See Video 3. He explains that approximately 6:15 p.m. on February 21, 2021, officers engaged in a use of force due to the failure of Plaintiff to comply when officers attempted to place him on control cell. See Video 3 at:23-1:00.
This video is also referred to as Exhibit 1 to Defendant Burzinski's affidavit.
In analyzing the first factor set forth in Whitley, the need for the application of force, the undersigned finds this factor weighs in favor of Defendants. Defendants argue that several inmates, including Plaintiff, chose to flood their cells and Plaintiff started a fire, prompting the need to remove the inmates from their cells. Plaintiff's filings support a finding that these actions occurred. He admits there was water covering the floor, and he admits an officer used a fire extinguisher, though Plaintiff does not explain why. Plaintiff does not otherwise refute Defendants' explanation for the circumstances surrounding the need to remove the inmates from their cells in the RHU. It is instead Plaintiff's contention that he was sleeping and awoke to said disturbance. However, these actions of Plaintiff leading up to his interactions with the officers explain their belief that there was a need to enact order in the RHU. All parties agree that there was water all over the floor; thus, it is clear that this flooding necessitated officer intervention.
The court, having the benefit of video footage to help aid in determining what occurred on February 21, 2021, can confirm that one or more officers are clearly pulling at the retrieval chain, in an apparent effort to place Plaintiff closer to the cell door. Thus, the force depicted in the video is that of the officers pulling on the retrieval chain, and the video shows their attempt to ensure that Plaintiff could not pull the chain into his cell. In this video, the officers, at least initially, are not inside the cell or in direct contact with Plaintiff. Plaintiff does not necessarily refute the reason for the application of force, and the undersigned finds that the video supports Defendants' explanation of the events surrounding the need to ensure Plaintiff's compliance.
As to the second factor, the relationship between the need for force and the amount of force used, Defendants argue that Plaintiff, who was initially cooperative, began refusing to comply with orders. Specifically, Defendants argue that Plaintiff refused to remove his jumpsuit to allow officers to handcuff him and clear his cell. There is a discrepancy regarding the reason behind Plaintiff's failure to comply with the orders to remove his jumpsuit. Plaintiff states he was unable to do so because he was shackled; however, Defendants explain that this is the common procedure for placing inmates on control cell, and Plaintiff was not yet in leg irons or handcuffs. This refusal to comply necessitated the officers to garner Plaintiff's compliance. Defendants state that they did not use any more force than was necessary. Plaintiff disagrees. However, a review of the video shows that when Defendants were first pulling the retrieval chain, Plaintiff did not initially appear to be in distress. See Video 1 at:01-:12. The video also does not depict Plaintiff already having been placed in leg irons and handcuffs. Thus, the relationship between the need for the force, that is to keep everyone within the institution safe and place Plaintiff on control cell, and the amount of force depicted in the video appears commensurate with each other.
As to the third factor, the extent of the threat, Defendants explained within their affidavits that if they did not forcefully pull the chain away from Plaintiff, the concern was that he could use the chain as a weapon. Thus, the Defendants involved in the incident felt they had to establish enough force to take the chain away from Plaintiff. Within the video, Defendants do not appear to be exercising force upon Plaintiff to harm him; instead, the video evidence shows that Defendants were trying to pull the retrieval chain away from Plaintiff. See Video 1 at:12-29. The officers were quickly able to establish control and place Plaintiff back in his cell. See Video 1 at 1:10-1:42. It took less than a few minutes for officers to obtain Plaintiff's jumpsuit. Finally, as to the fourth factor, efforts made to temper the severity of the force, Defendants do not present a clear argument as to how this factor applies. However, again the video evidence shows that once Defendants were able to regain Plaintiff's compliance, Defendants dispensed with the use of force within a few minutes. See Video 1 at:05:-3:02.
As argued by Defendants, the core inquiry in an excessive force claim is whether the force “was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” See Wilkins, 559 U.S. at 37. While Plaintiff argues the force was employed maliciously and sadistically, the video evidence does not support his claim. Plaintiff himself admits that he argued with Defendants about whether it was possible to remove his jumpsuit. Pl.'s Br. at 3; ECF No. 51. Defendants explained in their Reply that while Plaintiff alleges it is impossible to remove a jumpsuit when the leg irons and handcuffs are in place, those restraints do not appear to have been placed on him when he began refusing orders to comply with the officer's orders. Defs.' Reply at 2; ECF No. 52. Once Plaintiff began refusing the directives of the officers, they filmed the incident in question, which does not reflect an attempt on the part of the officers to inflict pain or harm upon Plaintiff. Plaintiff indicates that the video “clearly shows the end of the assault,” but he points to no evidence within the video to support his claim that he was assaulted. See Pl.'s Br. at 7; ECF No. 51. Plaintiff argues that the inmates' voices in the background indicate that excessive force was used, but these inmates were in their own cells at the time this incident occurred and could not clearly see what was going on in Plaintiff's cell. This court has previously considered and rejected a similar claim regarding a prison disturbance and the use of force on an inmate by pulling on his retrieval chain. See Griffin v. Cellman, No. 0:17-cv-00152-MGL, 2018 WL 1443948 (D.S.C. Mar. 22, 2018). In Griffin, the court explained that the plaintiff failed to refute evidence surrounding the context in which the defendants applied force by pulling on the plaintiff's retrieval chain after the plaintiff failed to comply with verbal directives. Id. at *2. Similarly, here Plaintiff has not refuted the evidence brought forth by Defendants in explaining why they applied force in a similar fashion. In fact, some of Plaintiff's own allegations are specifically refuted upon review of the video provided. For example, Plaintiff claims his “blood was splattered/dripping on the floor,” and he states he was “forcefully handcuffed behind his back” after Defendants were able to secure the retrieval chain. See Pl.'s Br. at 7. However, video evidence clearly refutes Plaintiff's version of events. See Video 2; See Video 4 at:00-:34 (showing Plaintiff walking back gingerly to his cell with the aid of officers). Finally, while Plaintiff alleges that while he was being seen by a nurse, Defendant Warden Palmer stepped on his right foot or ankle with a lot of force, causing an exacerbation to a previous injury, he provides no further details as to this allegation. See ECF No. 1-1 at 7. The only video evidence that shows Plaintiff's placement in the medical screening area does not depict this incident as having occurred. Further, medical records provided by Plaintiff show that he had pain in his right ankle and right foot several days prior to the incident in question. See Pl.'s Br., ECF No. 51-1 at 39. After reviewing the video evidence, as well as considering the information within the briefs provided by the parties in this case, the undersigned recommends finding that Defendants are entitled to summary judgment as Plaintiff's excessive force claim.
As states in Scott v. Harris, “when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” 550 U.S. 372, 379 (2007). Here, the undersigned finds that the video evidence blatantly contradicts Plaintiff's version of the incident.
6. Deliberate Indifference-Medical Care
Defendants also argue that they are entitled to summary judgment as to Plaintiff's claims regarding the failure to receive appropriate medical care after the incident in question. Plaintiff alleges several officers, as well as Nurse Burdette failed to afford him adequate medical attention or otherwise interfered with his ability to receive care at a hospital. The government is obligated to provide medical care to incarcerated individuals. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Supreme Court has held that deliberate indifference to a prisoner's serious medical needs constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment, whether it is in response to a prisoner's needs, there is an intentional denial or delay in access to medical care, or there is intentional interference with prescribed treatment. Estelle, 429 U.S. at 104. An Eighth Amendment claim for deliberate indifference to serious medical needs includes both objective and subjective elements. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). The objective element requires a serious medical condition. Id. A “serious medical condition” includes one that is diagnosed by a physician as mandating treatment or is “so obvious even a lay person would easily recognize the necessity for a doctor's attention.” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (quoting Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). Second, Plaintiff must establish that the prison official acted with a sufficiently culpable state of mind, that of “deliberate indifference . . . ‘to inmate health or safety.'” Scinto, 841 F.3d at 225 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Deliberate indifference requires that an official “had actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by the official's action or inaction.” Jackson, 775 F.3d at 178. In other words, deliberate indifference to a serious medical need requires proof that each defendant knew of and disregarded the risk posed by the plaintiff's objectively serious medical needs. Farmer, 511 U.S. at 846.
Plaintiff's allegations as to his medical care appear to have been brought against Defendants Lasley, Palmer, McCurry and Burdette. However, as an initial matter, to the extent Plaintiff's allegations imply that the Defendants who are officers should have provided alternative medical treatment, such as making the determination to transport Plaintiff to a hospital when it was not prescribed, Defendants argue that case law supports a finding that they (officers) have the right to rely on the prison medical staff for treatment. McEachern v. Civiletti, 502 F.Supp. 532, 534 (N.D. Il. 1980); see also Krug v. Loranth, No. 1:13-cv-1409-DCN, 2014 WL 4955365, at *7 (D.S.C. Sept. 29, 2014) (noting that “non-medical prison employees can be found to have acted with deliberate indifference by ‘intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.'”). Further, the video evidence supports a finding that Plaintiff was taken to be assessed by medical staff the same day as the use of force incident.
Defendants provide video of Plaintiff's initial medical care provided after the use of force incident. One video shows Plaintiff holding onto his arm while in the medical area. See Video 3; 1:15-10:20. Another video depicts a nurse explaining her post-use-of-force medical check. See Video 5. This nurse indicates that Plaintiff had complaints of pain to his right shoulder and wrist, and that medical advised Plaintiff they would re-check him in the morning, to contact them if his pain worsened, and to take the prescribed ibuprofen and ice. See Video 5 at:00-:31. Defendants also provided affidavit testimony discussing Plaintiff's medical care.
Plaintiff alleges that Defendant Warden Palmer and/or Defendant Lasley refused to allow Plaintiff to be transferred to a hospital. Defendant Palmer provided his own affidavit. Defendant Palmer avers that he was not present when the initial incident described by Plaintiff occurred on February 21, 2021. See Affidavit of John Palmer, ¶ 2 attached as Exhibit 8 to Defs.' Motion; ECF No. 47-8. Defendant Palmer does recall interacting with Plaintiff the following day, but he does not recall placing him in restraints. See Palmer Aff., ¶ 3. Defendant Palmer also recalls that Plaintiff was seen by medical personnel the night of the incident as well as the next day prior to his transfer to PCI. See Palmer Aff., ¶ 3. Defendant Palmer does not recall Plaintiff having any broken skin or obvious deformity to his arm. See Palmer Aff., ¶ 3. He asserts he never interfered with Plaintiff's medical care. See Palmer Aff., ¶ 3. Defendant McCurry provided an affidavit, as well. Defendant McCurry indicates that he does often transport inmates either to or from MCI, but he does not recall transferring Plaintiff. See Affidavit of Keith McCurry, ¶ 2 attached as Exhibit 11 to Defs.' Motion; ECF No. 47-11. Defendant McCurry indicates he also does not have Defendant Burdette's phone number and does not recall giving anyone at PCI her number. See McCurry Aff., ¶ 2. Finally, Defendant Nurse Samantha Burdette provided an affidavit. She states that Plaintiff was transferred to MCI on February 22, 2021. See Affidavit of Samantha Burdette, ¶ 2 attached as Exhibit 12 to Defs.' Motion; ECF No. 47-12. She recalls that another nurse called her regarding Plaintiff the day he was transferred. See Burdette Aff., ¶ 2. When Plaintiff arrived at MCI, Defendant Burdette recalls Plaintiff having a splint and Ace wrap on his arm. See Burdette Aff., ¶ 3. Defendant Burdette requested Plaintiff be sent for an x-ray. See Burdette Aff., ¶ 2. She does not recall Plaintiff having emergent active bleeding or Plaintiff voicing any concerns. See Burdette Aff., ¶ 4.
Defendant Nurse Burdette does not recall the nurse stating that there had been “a little use of force” and believes she would have remembered this statement. See Burdette Aff., ¶ 2.
Defendants have also provided Plaintiff's medical records to refute his claims that he was denied medical attention as to the treatment of his arm injury. The medical records on the day of the incident, signed by a Nurse Donna Ashley-Harouff, indicate that Plaintiff had abrasions to the last three digits of his right hand, and he was unable to tolerate either a radial pulse check or wound care to his hands. See Plaintiff's Medical Records, attached as Exhibit 10 to Defs.' Motion at ECF No. 47-10. Plaintiff was provided ice and given ibuprofen. See Plaintiff's Medical Records, ECF No. 47-10 at 25. Plaintiff was then treated the next morning. According to the medical records, Plaintiff complained of pain to his right shoulder, right wrist, and right hand. See Plaintiff's Medical Records, ECF No. 47-10 at 19. The nurse applied a splint and Ace bandage and called Nurse Burdette. See Plaintiff's Medical Records, ECF No. 47-10 at 20. Plaintiff received similar medical attention upon transfer to MCI. See Plaintiff's Medical Records, ECF No. 47-10 at 15. Further, the records show that an x-ray was performed on Plaintiff's right hand. See Plaintiff's Medical Records, ECF No. 47-10 at 11. At least one of the medical records provided by Plaintiff shows that Plaintiff was also placed in a soft case with a splint. See Pl.'s Br. at 51-1 at 21. The medical records further indicate Plaintiff was also provided mental health care. See Plaintiff's Medical Records, ECF No. 47-10 at 5; 8.
The medical records reflect the fact that there was a delay in Plaintiff undergoing an x-ray of his arm. Plaintiff, however, does not argue that a delay in medical treatment caused a worsening in his condition. Further, the medical records indicate that the unfortunate delay in receipt of an x-ray was due to the COVID-19 pandemic, as well as a staff shortage. See Pl.'s Br.; ECF No. 51-1 at 41, 44, 46.
While the court has considered Plaintiff's allegations regarding what he believes to be inadequate medical care, the undersigned does not find that the evidence supports his claim. As an initial matter, Defendants do not disagree that Plaintiff may have suffered a serious medical injury, and the undersigned assumes in this analysis that Plaintiff's injury meets this objective standard. However, the records do not support a finding that Plaintiff established that these Defendants acted with deliberate indifference. Plaintiff was seen immediately after the use of force incident, he was provided medication for swelling, as well as a bandage, and his arm/hand was x-rayed to ensure no major medical complication. Plaintiff may have desired transport to a hospital, but he is not entitled to the medical care of his choosing. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). While Plaintiff alleges that due to the perceived lack of medical care, his arm healed wrong and he developed PTSD, Plaintiff does not support these allegations with any proof to establish a genuine issue of material fact exists as to an alleged worsening of his injuries for failure to be treated in the manner of his choice. Moreover, courts will not interfere as to allegations of mere negligence, mistake, or a difference of opinion in treatment. Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977). Additionally, the medical records suggest Plaintiff received mental health care during the incident in question, and he received mental health care after the incident, as well. See ECF No. 47-10 at 5, 13; 26; ECF No. 51-1 at 10. Accordingly, the undersigned finds that Defendants are entitled to summary judgment as to Plaintiff's deliberate indifference claim.
7. Qualified Immunity
Defendants argue they are entitled to qualified immunity. “Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). When a qualified immunity defense is raised, the courts apply a two-part test. First, the court must determine whether the facts viewed in the plaintiff's favor make out a violation of one's constitutional rights, and second, whether the violated right was clearly established at that time. Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022) (citing Pearson v. Callahan, 555 U.S. 233, 231 (2009)). The Fourth Circuit employs a split burden of proof for the qualified immunity defense. The plaintiff bears the burden of proving the first prong, and the [officer] bears the burden on the second prong. Stanton, 25 F.4th at 233 (citing Henry v. Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir. 2007)). Plaintiff does not provide a substantive response to this argument. In any event, the undersigned has previously determined that Plaintiff has failed to establish any constitutional violation on the part of any of the Defendants. Accordingly, the undersigned recommends finding that Defendants are entitled to qualified immunity.
8. Motion to Strike pursuant to the Prison Litigation Reform Act
Defendants argue that, pursuant to § 1915(e) and § 1915A, this case should count as a strike against Plaintiff pursuant to the PLRA. Congress established part of the PLRA to reduce the number of frivolous lawsuits filed in federal court. Under the PLRA, if a prisoner has three cases dismissed as frivolous, malicious, or for failure to state a claim for which relief may be granted, the prisoner is no longer able to proceed in forma pauperis in filing subsequent suits. Blakely v. Wards, 738 F.3d 607, 609 (4th Cir. 2013). Defendants argue that Plaintiff's brought frivolous claims in that the claims are both “based on an indisputably meritless legal theory” and are claims “whose factual contentions are clearly baseless.” Defs.' Motion, ECF No. 47-1 at 27; see generally Nietzke v. Williams, 490 U.S 319 (1989). The undersigned has considered Defendants' arguments; however, after reviewing all pleadings in this case, the undersigned does not agree that Plaintiff's claims were filed frivolously. Therefore, the undersigned recommends that the district court deny the request to consider this action as a strike under the Prison Litigation Reform Act.
IV. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court grant Defendants' Summary Judgment Motion, ECF No. 47 as to all claims alleged in Plaintiff's Complaint.
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
Post Office Box 2317
Florence, South Carolina 29503
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).