Opinion
C/A No. 2:21-00237-HMH-MHC
06-10-2021
Ernest Lee Readon, a/k/a Ernest Reardon, a/k/a Earnest Reardon, Plaintiff, v. Thomas L. Huckaby, Jr.; Scott Lamar Robinson, Defendants.
REPORT AND RECOMMENDATION
This a civil action filed by a state prisoner. In the event a limitations issue arises, Plaintiff shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to the district court). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016).
However, even when considered under this less stringent standard, for the reasons set forth below, this case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
I. BACKGROUND
Records from Clarendon County indicate that on January 24, 2019, Plaintiff pleaded guilty to two counts of second-degree burglary (case number 2019A1410100019, indictment number 2019-GS-14-00069 and case number 2019A1410100011, indictment number 2019-GS-14-00071) and was sentenced to two concurrent sentences of ten years' imprisonment suspended to seven years' imprisonment and three years' probation. See Clarendon County Third Judicial Circuit Public Index, https://publicindex.sccourts.org/Clarendon/PublicIndex/CaseDetails.aspx?County=14&CourtAgency=14001&Casenum=2019A1410100011&CaseType=C&HKey=101878110069797449476755103831105155541037450977055566997491129782101821171106680708970718784107; https://publicindex.sccourts.org/Clarendon/PublicIndex/CaseDetails.aspx?County=14&CourtAgency=14001&Casenum=2019A1410100019&CaseType=C&HKey=10877908411366671155797831138367971081081104311411171871179979858310647115678110268991065467104121111119 (last visited June 9, 2021).
This Court "may properly take judicial notice of matters of public record." See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that '[t]he most frequent use of judicial notice is in noticing the content of court records.'").
In his initial Complaint, Plaintiff alleged that his constitutional rights were violated as to his arrest for first-degree burglary and as to his guilty plea. See Complaint, ECF No. 1 at 4, 8-11; ECF No. 1-1 at 27. Plaintiff alleged that Defendant Thomas L. Huckaby, Jr. (Huckaby) of the Clarendon County Sheriff's Office violated his constitutional rights by including false information in the affidavit for an arrest warrant for Plaintiff on the charge of first-degree burglary. ECF No. 1 at 8-9. Plaintiff also alleged that his public defender, Defendant Scott Lamar Robinson (Robinson), violated his constitutional rights as to his guilty plea. Id. at 9-11. He requested monetary damages. Id. at 11.
In an Order dated March 30, 2021, Plaintiff was given notice that his Complaint was subject to summary dismissal because he failed to state a claim for false arrest or conspiracy and the facts failed to indicate that Robinson acted under color of state law. Plaintiff was reminded that he could not amend his Complaint in a piecemeal fashion and that an amended complaint replaces the original complaint and should be complete in itself. See ECF No. 9. In response, Plaintiff filed an Amended Complaint on May 10, 2021. ECF No. 15.
II. AMENDED COMPLAINT
The Amended Complaint should be summarily dismissed because Plaintiff has failed to request any relief, has failed to state any claim against Defendant Huckaby, and has failed to state a cognizable claim against Defendant Robinson.
A. Failure to State a Claim for Relief
In the "Relief" section of the standard complaint form submitted as his Amended Complaint, Plaintiff merely wrote "Please See Attach [sic] Sheet[.]" ECF No. 15 at 6. However, in his attachment, Plaintiff fails to state any claim for relief. See ECF No. 15-1 at 1-5. Were this Court to find that Plaintiff's rights have been violated, but order no remedy, it would, in effect, be rendering an advisory opinion; such action is barred by Article III of the Constitution. Preiser v. Newkirk, 422 U.S. 395, 401 (1975); see also Bowler v. Young, 55 F. App'x 187, 188 (4th Cir. 2003); Norvell v. Sangre de Cristo Dev. Co., 519 F.2d 370, 375 (10th Cir. 1975) (federal courts do not render advisory opinions).
To the extent that Plaintiff may be attempting to have this Court set aside his convictions or release him from prison, such relief is not available in this § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983"); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973)(attacking the length of duration of confinement is within the core of habeas corpus).
B. Defendant Huckaby
In his Amended Complaint, Plaintiff answered "NA" to all the standard questions concerning the facts of his case. ECF No. 15 at 5. Additionally, in his attachment Plaintiff fails to state any claim against Defendant Huckaby. See ECF No. 15-1 at 1-5. Although Plaintiff lists Defendant Huckaby's name in the caption of his Amended Complaint and in the list of Defendants (ECF No. 15 at 1-2), he fails to provide any specific facts to support a claim that Defendant Huckaby violated his federal constitutional or statutory rights. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, " 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests'" (quoting Fed. R. Civ. P. 8(a)(2))). Although the "liberal pleading requirements" of Rule 8(a) only require a "short and plain" statement of the claim, a plaintiff must "offer more detail ... than the bald statement that he has a valid claim of some type against the defendant." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also White v. White, 886 F.2d 721, 723 (4th Cir. 1989) (district court did not abuse discretion by dismissing plaintiff's complaint which "failed to contain any factual allegations tending to support his bare assertion").
C. Defendant Robinson
In his attachment to the Amended Complaint, Plaintiff alleges:
[O]n January 24th, 2019, while Before the Honorable Judge Ralph Ferrell Cothran, Jr., that one Scott Lamar Robinson, Esquire, Knowingly did have one Ernest Lee Readon, sentence to a Burglary Second Degree (Violent) (15) Years concurrent to Burglary Second Degree (Violent) (10) Years. The Plaintiff submits that on discovering the sentence was Illegal on the grounds, Mr. Readon only had one violent Burglary, the Plaintiff concedes Attorney Scott Lamar Robinson withdrew the initial (violent burglary) and later had Mr. Readon, resentence with no indictments to two (2) Burglaries (nonviolent).ECF No. 15-1 at 3 (errors in original). In the "Defendants" section of the Amended Complaint, Plaintiff lists Defendant Robinson's job or title as Public Defender. ECF No. 15 at 3.
Defendant Robinson is subject to summary dismissal because an attorney, whether retained, court-appointed, or a public defender, does not act under color of state law. See Vermont v. Brillon, 556 U.S. 81, 91 (2009) (noting that a publicly assigned or privately retained counsel for a criminal defendant is not ordinarily considered a state actor); Polk County v. Dodson, 454 U.S. 312, 317-324 nn. 8-16 (1981) ("A lawyer representing a client is not, by virtue of being an officer of the court, a state actor 'under color of state law' within the meaning of § 1983."); Hall v. Quillen, 631 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir.1980) (court-appointed attorney); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (private attorney). Plaintiff has alleged no facts to indicate that Robinson acted under color of state law.
III. ORIGINAL COMPLAINT AS SUPPLEMENTED
As noted above, the Amended Complaint replaces the original Complaint and, thus, this Court should consider only the Amended Complaint and not the Complaint. However, even if the Amended Complaint is interpreted as a supplement to the original Complaint and the two documents are considered together, this case is still subject to summary dismissal for the reasons discussed below.
A. Defendant Huckaby
In the Complaint, Plaintiff alleged that on January 8, 2019, Huckaby included a false statement in the affidavit for his arrest warrant charging Plaintiff with first-degree burglary. Specifically, Plaintiff claims that Huckaby falsely asserted in his affidavit that Plaintiff had two prior convictions for burglary. ECF No. 1 at 8. With his Complaint, Plaintiff submitted copies of his arrest warrants. On January 4, 2019, Defendant Huckaby submitted an affidavit and Judge Robin Carol Locklear issued a warrant for Plaintiff's arrest on the charge of second-degree burglary. In his affidavit, Huckaby stated that Plaintiff was apprehended on January 3, 2019, after Plaintiff left Johnson's Fish Shop at night with the intent to take money from inside. See ECF No. 1-1 at 6, Arrest Warrant Number 2019A1410100011. On January 8, 2019, Huckaby submitted an affidavit and Judge Locklear issued an arrest warrant on the charge of first-degree burglary. In his affidavit, Huckaby stated that Plaintiff entered Johnson's Fish Shop unlawfully by force with the intent to deprive the business of merchandise and/or money on January 1, 2019. Huckaby wrote that, during a recorded interview, Plaintiff admitted involvement in the burglary and was being charged with burglary first-degree because Plaintiff had two prior convictions for burglary. See ECF No. 1-1 at 4, Arrest Warrant Number 2019A1410100019.
To succeed on a Fourth Amendment false arrest claim, Plaintiff must demonstrate that Defendant Huckaby arrested him without probable cause. See Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002) (recognizing that a plaintiff alleging a § 1983 false arrest claim needs to show that the officer arrested him without probable cause to establish an unreasonable seizure under the Fourth Amendment); Rogers v. Pendleton, 249 F.3d 279, 294 (4th Cir. 2001) (stating that claims of false arrest and false imprisonment "are essentially claims alleging a seizure of the person in violation of the Fourth Amendment"). "Probable cause to justify an arrest arises when 'facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'" Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). It requires more than bare suspicion, but less than evidence necessary to convict. Porterfield, 156 F.3d at 569. Moreover, to demonstrate that an officer seized an individual pursuant to an arrest warrant without probable cause, a plaintiff must show that the officer "deliberately or with a reckless disregard for the truth made material false statements in his affidavit or omitted from that affidavit material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading." Miller v. Prince George's Cty., 475 F.3d 621, 627 (4th Cir. 2007) (internal citations and quotation marks omitted).
Plaintiff fails to state a claim for false arrest as to his arrest on the charge of first-degree burglary because he has not alleged that Defendant Huckaby did not have probable cause to arrest him on this charge. Instead, Plaintiff appears to claim that the charge should have been for a lesser offense because he did not have two prior burglary convictions. However, records from Clarendon County indicate that on June 21, 1994, Plaintiff pleaded guilty to first-degree burglary (indictment number 1994-GS-14-00255, case number D916591, arrest date May 3, 1994) and was sentenced to thirty years' imprisonment. On June 21, 1994, Plaintiff also pleaded guilty to second-degree burglary (indictment number 1994-GS-14-00253, case number D916583, arrest date March 30, 1994) and was sentenced to fifteen years' imprisonment to run concurrent to his other sentences. See Clarendon County Third Judicial Circuit Public Index, https://publicindex.sccourts.org/Clarendon/PublicIndex/CaseDetails.aspx?County=14&CourtAgency=14001&Casenum=D916591&CaseType=C&HKey=857166101577784112978283109106115106704711472107103104801028610311481838811311183549810498100651201185165;https://publicindex.sccourts.org/Clarendon/PublicIndex/CaseDetails.aspx?County=14&CourtAgency=14001&Casenum=D916583&CaseType=C&HKey=687174551061067111588108769711011775751088443889082104997711684109998210784715689117119839786487673 (last visited June 9, 2021).
To the extent Plaintiff may also be challenging his arrest on the charge of second-degree burglary, he also fails to state a false arrest claim as to that charge.
The record of the second-degree burglary conviction is listed under the name "Ernest Lee Reardon" and the record of the first-degree burglary conviction is listed under the name "Earnest Reardon." However, these records reference the same birthdate and other personal identification information found in the records for "Ernest Lee Readon" as to the convictions challenged in this action. Additionally, Plaintiff filed several applications for post-conviction relief, including one in 2017, in which the court specifically mentioned Plaintiff's 1994 convictions for first-degree burglary and second-degree burglary that Plaintiff unsuccessfully challenged. See Clarendon County Case Number 2017-CP-14-0060, Conditional Order of Dismissal.
Plaintiff appears to argue that he could not be charged with first-degree burglary because a prior burglary conviction was expunged. In support of this assertion, Plaintiff submitted two copies of the first page of a two-page "Order for Destruction of Arrest Records" (he failed to submit the second page of the document) pertaining to an arrest on May 5, 1993. In the order it was noted that the charge was dismissed, nolle prossed, or the defendant was found not guilty on January 12, 1994. ECF No. 1-1 at 2, 28 (duplicate). However, there is no indication that this document, that lists warrant/GS No. D695684 with an arrest date of May 5, 1993, pertains to Plaintiff's June 21, 1994 burglary convictions (warrant numbers D916591 and D916583 for arrests on May 3 and March 30, 1994) or that these two prior burglary convictions were expunged. Moreover, the Order for Destruction of Arrest Record appears to be dated April 18, 2019 (see ECF No. 1-1 at 2, 28), after the time the January 2019 arrest warrant was issued, such that it does not appear to show that Defendant Huckaby knew of any expungement prior to the time of the arrest warrant.
Therefore, Defendant Huckaby should be summarily dismissed as a Defendant to this action as Plaintiff has failed to plead facts indicating that Huckaby lacked probable cause in seeking the arrest warrant or that Huckaby made false statements or omitted material facts in the warrant affidavit he presented to the judge. See Fed. R. Civ. P. 8; Ashcroft v. Iqbal, 556 U.S. at 678 ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.") (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
B. Defendant Robinson
Plaintiff also alleges claims against Defendant Robinson as to Robinson's actions during Plaintiff's guilty plea. He claims that on January 24, 2019, he first pleaded guilty to two counts of second-degree burglary (violent) and was sentenced to "(15) years, concurrent to 10 year[.]" Complaint, ECF No. 1 at 9. Plaintiff asserts that Judge Ralph Ferrell Cothran, Jr. later summoned Assistant Solicitor Katarzyna K. Timmons and Robinson into his chambers without Plaintiff, at which time these three persons allegedly conspired to have Plaintiff resentenced. After the meeting, Robinson allegedly informed Lt. Owens and Lt. Sumpter of the Clarendon County Detention Center that Plaintiff was "correct" that the original sentence and conviction was "illegal" on the basis that Plaintiff did not have two or more prior convictions for burglary. Plaintiff claims that Robinson conspired with Judge Cothran and Assistant Solicitor Timmons to violate Plaintiff's federal constitutional rights by resentencing Plaintiff under allegedly invalid "no bill" indictments 2019-GS-14-0069 and 2019-GS-14-0071. ECF No. 1 at 10. The sentencing sheets provided by Plaintiff, as well as the Clarendon County records discussed above, indicate Plaintiff pleaded guilty to two charges of second-degree burglary (non-violent) and was sentenced to two concurrent ten year terms of imprisonment, provided that upon service of seven years' imprisonment the balance was suspended to seven years' imprisonment with probation for three years. ECF No. 1-1 at 14, 16.
As discussed above, Defendant Robinson should be summarily dismissed because, as a public defender, he does not act under color of state law. In the Amended Complaint, Plaintiff may be attempting to argue that Robinson is a state actor because he was under contract with the state. ECF No. 15-1 at 3. While it is true that private individuals can become state actors by entering into contracts with the state to provide services that the state is obligated to provide, see West v. Atkins, 487 U.S. 42, 54 (1988), in Polk County v. Dodson, 454 U.S. at 325, the Supreme Court held a state-paid public defender occupied a sufficiently independent and adversarial role to the state such that the public defender did not act under color of state law when representing a criminal defendant. See, e.g., Curry v. South Carolina, 518 F. Supp. 2d 661 (D.S.C. 2007) (explaining that public defenders are not state actors under § 1983).
Plaintiff also may be attempting to assert that Robinson is a state actor because Robinson allegedly conspired with state actors Judge Cothran and Assistant Solicitor Timmons. In some instances, a private party that jointly participates in constitutional wrongdoing with a state official may be said to have engaged in "state action" under § 1983. See Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). To establish a civil conspiracy under § 1983, a plaintiff must present evidence that the Defendants acted jointly in concert and that some overt act was done in furtherance of the conspiracy, which resulted in the deprivation of a constitutional right. Glassman v. Arlington Cnty., 628 F.3d 140 (2010) (citing Hinkle v. City of Clarksburg, 81 F.3d 416 (4th Cir.1996)). Additionally, the plaintiff must come forward with specific evidence that each member of the alleged conspiracy shared the same conspiratorial objective. Hinkle, 81 F.3d at 421. The factual allegations must reasonably lead to the inference that the defendants came to a mutual understanding to try to "accomplish a common and unlawful plan" and a plaintiff's allegations must amount to more than "rank speculation and conjecture," especially when the actions are capable of innocent interpretation. Id. at 421-422.
Here, Plaintiff offers only conclusory allegations of an agreement or meeting of the minds between Defendant Robinson and persons who are not named as defendants to this action such that these claims are subject to summary dismissal. See generally Ashcroft v. Iqbal, 556 U.S. at 677-679; Bell Atl. Corp. v. Twombly, 550 U.S. at 555; see also Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (conclusory allegations of conspiracy between private attorney and state officer insufficient to support § 1983 claim). Additionally, review of the sentencing sheets indicate, in the light most favorable to Plaintiff, a change from a second-degree burglary (violent) plea to a second-degree burglary (non-violent) plea with a reduction in the possible sentencing range from 0 to 15 years' imprisonment to a sentencing range of 0 to 10 years' imprisonment. There is simply nothing on the sentencing sheets indicating that the charge Plaintiff claims he initially pleaded guilty to was "illegal" or that Plaintiff initially pleaded to a first-degree (rather than a second-degree) burglary charge.
Any attempt to amend to add sentencing Judge Cothran and/or Assistant Solicitor Timmons as defendants would be futile. Based upon the facts alleged, Judge Cothran would be entitled to judicial immunity. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) ("it has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions."); see also Siegert v. Gilley, 500 U.S. 226 (1991) (immunity presents a threshold question that should be resolved before discovery is even allowed). Further, "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority." Stump, 435 U.S. at 356-57. Additionally, Assistant Solicitor Timmons would be entitled to prosecutorial immunity based on the alleged facts. See Van de Kamp v. Goldstein, 555 U.S. 335, 341-343 (2009); see also Garrett v. McMaster, No. 7:07-2952-HFF-WMC, 2008 WL 3411673 (D.S.C. Aug. 11, 2008) (finding that the Attorney General and a former Assistant Attorney General had prosecutorial immunity for conduct related to presenting the State's case).
Although arrest warrant number 2019A1410100019 listed the offense of burglary/burglary - first degree (ECF No. 1-1 at 4) and Plaintiff assets he was indicted as to that charge, Plaintiff initialed a statement on the sentencing sheet indicating he waived presentment to the Grand Jury and he also signed the sheet. See ECF No. 1-1 at 16.
To the extent that Plaintiff may be attempting to assert a conspiracy claim under 42 U.S.C. §§ 1985 or 1986, such claims are also subject to summary dismissal. See Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995) (The Fourth Circuit has "specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts."). Any such claim should be dismissed as Plaintiff has merely alleged conspiracy in a conclusory manner without concrete supporting facts.
Viability of a § 1986 claim is based on the antecedent § 1985 claim. If the 1985 claim is dismissed, the § 1986 claim also fails. Buschi v. Kirven 775 F.2d 1240, 1243 (4th Cir. 1985); Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985).
C. Heck v . Humphrey
Additionally, to the extent that Plaintiff's claims for damages would implicitly question the validity of his convictions or the duration of his sentences, his claims are subject to summary dismissal based on the United States Supreme Court's decision in Heck v. Humphrey, 512 U.S. at 481, where the Court held that a state prisoner's claim for damages is not cognizable under § 1983 where success of the action would implicitly question the validity of the conviction or duration of the sentence, unless the prisoner can demonstrate that the conviction or sentence has been previously invalidated. Heck, 512 U.S. at 486-487. Here, if Plaintiff's allegations that Defendants caused him to be convicted under an illegal indictment were to result in a successful judgment on his behalf, this would necessarily imply the invalidity of his conviction(s) or sentence(s) and thus is barred under the doctrine set forth in Heck. See, e.g., Zeigler v. Woodford, No. 517CV00480MTTMSH, 2018 WL 2248754 (M.D. Ga. Apr. 27, 2018), report and recommendation adopted, 2018 WL 2247249 (M.D. Ga. May 16, 2018)
RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this case without issuance and service of process.
The undersigned is of the opinion that Plaintiff cannot cure the defects identified above by further amending his complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 608-615 (4th Cir. May 19, 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)).
The parties are also referred to the Notice Page attached hereto.
/s/_________
Molly H. Cherry
United States Magistrate Judge June 10, 2021
Charleston, South Carolina
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).