Khan v. Stirling

Full title: Darnell Khan, Plaintiff, v. Bryan P. Stirling, Defendant.

Court: UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Date published: Jul 24, 2019

C/A No. 9:18-3130-BHH-BM (D.S.C. Jul. 24, 2019)

Opinion

C/A No. 9:18-3130-BHH-BM

07-24-2019

Darnell Khan, Plaintiff, v. Bryan P. Stirling, Defendant.

Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

The Plaintiff, Darnell Khan, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. He is currently housed at the Tallahatchie County Correctional Facility (TCCF) in Tutwiler, Mississippi. The Defendant is Bryan P. Stirling, the Director of the South Carolina Department of Corrections (SCDC). In a report and recommendation filed February 12, 2019, the undersigned recommended that the Complaint be summarily dismissed. ECF No. 11. Plaintiff thereafter filed a motion to amend his Complaint on April 5, 2019. ECF No. 20. On May 8, 2019, the Honorable Bruce Howe Hendricks, United States District Judge, granted Plaintiff's motion to amend and ordered him to file an amended complaint (ECF No. 22), which he did on June 3, 2019 (ECF No. 25). The case has now been re-committed to the undersigned for a review of the new amended Complaint.

Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, 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, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a pro se complaint to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); Hughes v. Rowe, 449 U.S. 5, 9 (1980). However, even when considered pursuant to this liberal standard, for the reasons set forth hereinbelow the undersigned finds that this case remains subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim 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 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].

Discussion

In June 2018, Plaintiff was transferred to TCCF from the Lieber Correctional Institution (TCI), part of the SCDC. Plaintiff is serving concurrent South Carolina criminal sentences for burglary-first degree (twenty years imprisonment), voluntary manslaughter (twenty-five years imprisonment), and attempted armed robbery (twenty years imprisonment). See ECF No. 25 at 5; see also SCDC Inmate Report, http://public.doc.state.sc.us/scdc-public/ [Search Inmate "Darnell Khan"].¹ Plaintiff alleges that his transfer to TCCF, an out-of-state, private prison run by Core Civic of America, also known as Corrections Corporation of America (CCA), violates his constitutional rights. Amended Complaint, ECF No. 25 at 8. Plaintiff requests monetary damages. ECF No. 25 at 9-10.

1 This Court may take judicial notice of factual information located in postings on government web sites. See Tisdale v. South Carolina Highway Patrol, C/A No. 0:09-1009-HFF-PJG, 2009 WL 1491409, *1 n. 1 (D.S.C. May 27, 2009), aff'd 347 F. App'x 965 (4th Cir. Aug. 27, 2009); In re Katrina Canal Breaches Consolidated Litigation, No. 05-4182, 2008 WL 4185869 at * 2 (E.D.La. September 8, 2008)[noting that courts may take judicial notice of governmental websites including other courts' records]; Williams v. Long, 585 F.Supp.2d 679, 687-88 (D.Md. 2008) [noting that some courts have found postings on government web sites as inherently authentic or self-authenticating].

Plaintiff alleges in his Amended Complaint that riots occurred at the Lee Correctional Institution, part of the SCDC, in April 2018, which resulted in the deaths of seven inmates and injuries to seventeen others, after which authorities stated that the riots "gained fuel because of contraband cell phones inmates carried within the facility." ECF No. 25 at 2-3. Plaintiff asserts that as a result of these riots, forty-eight SCDC inmates from institutions throughout the state of South Carolina were selected as "perfect scapegoats" to be involuntarily transferred out of state to Mississippi in June 2018. Plaintiff further asserts that an SCDC spokesperson announced publically that forty-eight "problematic" inmates were transferred to TCCF. Plaintiff alleges that the Defendant Stirling ordered his out-of-state involuntary transfer, and argues that he should not have been transferred because he has only had "one assaultive disciplinary" (on October 6, 2015) since his admission to the SCDC on February 12, 2015.² ECF No. 25 at 2-6.

2 However, according to SCDC public records, Plaintiff has a lengthy SCDC disciplinary record which includes a conviction for smuggling/conspiracy to smuggle contraband; four convictions of possession of a weapon; four convictions for possession or attempt to possess a cell phone; three convictions of inciting/creating a disturbance; four convictions for throwing a substance or object on a government employee; three convictions for threatening to inflict harm on an employee; three convictions for possession of contraband; one conviction for use or possession of narcotics, marijuana, unauthorized drug, or inhalant; two convictions of refusing or failing to obey orders; one conviction of soliciting an employee or inmate in violation of SCDC rules; and eighteen convictions for exhibitionism and public masturbation. See http://public.doc.state.sc.us/scdc-public/ [Search Inmate "Darnell Khan"].

Plaintiff initially alleges that his due process rights were violated because he did not receive adequate notice and a reasonable opportunity to be heard before being involuntarily transferred to Mississippi. ECF No. 25 at 8. However, Plaintiff's due process claims are subject to summary dismissal because he has no protected constitutional interest in being housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983)[inmates have no due process right to choose their specific place of confinement]; Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (same). The Supreme Court, in addressing the transfer of an inmate from Hawaii to California, stated:

In short, it is neither unreasonable nor unusual for an inmate to serve practically his entire sentence in a State other than the one in which he was convicted and sentenced, or to be transferred to an out-of-state prison after serving a portion of his sentence in his home State. Confinement in another State, unlike confinement in a mental institution, is "within the normal limits or range of custody which the conviction has authorized the State to impose." ... Even when, as here, the transfer involves long distances and an ocean crossing, the confinement remains within constitutional limits. The difference between such a transfer and an intrastate or interstate transfer of shorter distance is a matter of degree, not of kind, and Meachum instructs that "the determining factor is the nature of the interest involved rather than its weight." ... The reasoning of Meachum and Montanye ³ compels the conclusion that an interstate prison transfer, including one from Hawaii to California, does not deprive an inmate of any liberty interest protected by the Due Process Clause in and of itself.

Olim v. Wakinekona, 461 U.S. at 247-48 (citations and footnotes omitted). The Supreme Court further noted:

A conviction, whether in Hawaii, Alaska, or one of the contiguous 48 States, empowers the State to confine the inmate in any penal institution in any State unless there is a state law to the contrary or the reason for confining the inmate in a particular institution is itself constitutionally impermissible.

Id. at 249, n. 9 (citations omitted).

3 Montanye v. Haymes, 427 U.S. 236, 96 (1976).

Plaintiff nonetheless argues that South Carolina law or an SCDC policy created a protected liberty interest in certain procedures that he claims were required to be followed before he could be transferred. However, he has not identified or provided any facts to show that he was entitled to any mandatory procedures that created a protected liberty interest. To the extent that Plaintiff is referring to the partial document included with his original Complaint which appears to be a portion of SCDC Policy OP-21.03 (ICC), he has presented nothing to show that this SCDC policy concerning transfers between South Carolina and other signatory states is applicable to a transfer from South Carolina to a private prison.⁴ Further, any violation of an SCDC policy (even assuming any such violation in fact occurred), standing alone, does not constitute a violation of Plaintiff s constitutional rights, and is therefore not assertable in a § 1983 action. See Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992); cf. Johnson v. S.C. Dep't of Corrs., No. 06-2062, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007)[The plaintiff's allegation that defendants did not "follow their own policies or procedures, standing alone, does not amount to a constitutional violation."](citing Riccio v. County of Fairfax, Virginia, 907 F.2d 1459, 1469 (4th Cir. 1990)[if state law grants more procedural rights than the Constitution requires, a state's failure to abide by that law is not a federal due process issue]).

4 The South Carolina Interstate Corrections Compact (ICC), S.C. Code Ann. §§ 24-11-10 et seq., which declares that the ICC is entered into by South Carolina "with any other states legally joining therein," defines "State" as "a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico." S.C. Code Ann. § 24-11-20. Thus, there is no indication that CCA is a "State" under the South Carolina ICC. See, e.g., Dy v. Nale, ___ F. App'x ___, 2019 WL 25577469, at * 2 (9th Cir. June 24, 2019)[noting that by California's ICC's plain language CCA was not a "state"].

Plaintiff may be attempting to allege that he has been punished without due process because the transfer placed in him in a prison where he is not housed in an open population and he cannot to walk to the cafeteria to eat, cannot walk to the law library several times a week and receive assistance from law clerks,⁵ cannot pay for outside dental and medical care, cannot visit sick family members in the hospital or attend a funeral proceeding in the case of a death as allowed by S.C. Code Ann. § 24-3-220, is only allowed out of his cell for one hour of recreation a day, is not allowed to work outside the unit and in prison industries for monetary wages, cannot request a hardship transfer pursuant to SCDC policy OP-21.04, cannot attend weekly religious services, cannot go to school/vocational training, and cannot receive a hearing to challenge rule violations. Disciplinary proceedings which implicate a protected liberty interest demand due process. See Wolff v. McDonnell, 418 U.S. 539 (1974). However, to prevail on such a due process claim, an inmate must first demonstrate that he was deprived of "life, liberty, or property" by governmental action. Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997). Here, Plaintiff has not alleged that he has suffered the loss of any such protected interest, such as (for example) the loss of good-time credits, as a result of his alleged disciplinary transfer. When the punishment does not cause the original sentence to be enhanced, protected interests will be generally limited to freedom from restraint that imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484 (1995)[holding that disciplinary segregation did not present the type of atypical, significant deprivation in which a state might create a liberty interest]. In Sandin, the Court concluded that the plaintiff's "segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. at 486.

5 However, in a letter filed April 5, 2019, Plaintiff appears to admit that he is allowed to go to the law library, although he complains about not getting as much law library time as he thinks he should be allowed. ECF No. 19.

Hence, although Plaintiff complains of more restrictive conditions at TCCF, under the analysis set forth in Sandin, the facts alleged fail to show that he has a protected liberty interest in his security or custody classification. See id. at 483-85; see also Backey v. South Carolina Dep't. of Corrs., 73 F.3d 356, 1996 WL 1737 (4th Cir. Jan. 3, 1996)[allegations of wrongful placement in administrative segregation do not involve the kind of significant or atypical hardship necessary to invoke due process rights]; Joseph v. Gillespie, 73 F.3d 357, 1995 WL 756280 (4th Cir. Dec. 21, 1995)["Administrative segregation is not an 'atypical and significant hardship' relative to the ordinary incidents of prison life that would give rise to a liberty interest protected by any procedure."]; Reffritt v. Nixon, 917 F. Supp. 409, 412 (E.D.Va. 1996)[plaintiff has no protected interest in remaining in or being released into general population], aff'd, 121 F.3d 699 (4th Cir. 1997).⁶

6 While the Fourth Circuit has held that a prisoner may set forth a viable due process claim relating to a custody status decision under some circumstances, Plaintiff has failed to set forth any facts sufficient to proceed on such a claim in this case. Cf. Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015).

More specifically, while Plaintiff alleges that restrictions as to what prison job he can hold and his ability participate in prison programs violates his rights, a prisoner has no constitutional right to participate in prison programs, so his ineligibility or the failure to hire him for a prison work job is not a deprivation of constitutional magnitude. See Altizer v. Paderick, 569 F.2d 812 (4th Cir.), cert. denied, 435 U.S. 1009 (1978)[custody classifications and work assignments are generally within the discretion of the prison administrator]; Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir. 1980)["An inmate's expectation of keeping a certain prison job does not amount to a property or liberty interest entitled to protection under the due process clause."]; Alley v. Angelone, 962 F. Supp. 827, 834 (E.D.Va. 1997)[prisoner did not have a protected interest in continued employment because lack of employment was clearly within the range of confinement which could be expected by most inmates]. Further, the law is well settled that an inmate has no constitutional right to participate in a rehabilitative program. See McKune v. Lile, 536 U.S. 24, 38 (2002)[a prisoner has no constitutional right to the opportunity to participate in vocational, educational, recreational, and rehabilitative programs];Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988) [state has no constitutional obligation to provide basic educational or vocational training programs to prisoners] (citing Newman v. State of Alabama, 559 F.2d 283, 292 (5th Cir. 1977), rev'd in part on other grounds sub nom., Alabama v. Pugh, 438 U.S. 781 (1978)); McCray v. Sullivan, 509 F.2d 1332, 1335 (5th Cir.), cert. denied, 423 U.S. 859 (1975) [failure to provide rehabilitation, by itself, does not constitute a violation of Eighth Amendment]; Abdul-Akbar v. Department of Corrs., 910 F.Supp. 986, 1002 (D.Del. 1995)[no right to drug treatment, employment, or other rehabilitation, education, or training programs in prison].

Similarly, Plaintiff's allegation that the Defendant has violated South Carolina law because he is not allowed to visit sick family members in the hospital or attend a funeral proceeding pursuant to S.C. Code Ann. § 24-3-220 fails to state a claim. Although this law, titled "Inmate privileges; attending funeral service; visiting family member in the hospital; transportation; notification", provides certain circumstances in which an inmate may chose to visit a dying relative or attend the relative's funeral, it also specifies that such visitation is only allowed "when the department has determined that there is no security risk to the public or institution", and further provides that the SCDC "may collect [in advance] the actual cost for security and transportation." S.C. Code Ann. § 24-3-220. There is no indication that this law provides for mandatory visitation, nor has Plaintiff alleged that he has even requested such a visit or that a safety determination has been made. Further, to the extent Plaintiff claims that his transfer violates SCDC policies, including his allegation that he is now unable to request a hardship transfer pursuant to SCDC Policy OP-21.04, a violation of such SCDC policies (as noted above) does not constitute a violation of Plaintiff s constitutional rights, and is therefore not assertable in a § 1983 action. See Keeler v. Pea, 782 F. Supp. 42, 44 (D.S.C. 1992).

Plaintiff also asserts that being labeled "problematic" and a "shot-caller" publically by a state official caused him "an undeniable amount of stress and mental anguish." ECF No. 25 at 7. However, there is no federal constitutional right to be free from emotional distress, psychological stress, or mental anguish; hence, there is no liability for compensatory or punitive damages under § 1983 regarding such claims, even assuming Stirling could be shown to have made any such statements. See Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985); Rodriguez v. Comas, 888 F.2d 899, 903 (1 st Cir. 1989). The Prison Litigation Reform Act provides that physical injuries are a prerequisite for an award of damages for emotional distress under § 1983. 42 U.S.C. § 1997e(e)["No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without aprior showing of physical injury"].

Plaintiff also asserts that the Defendant's action were a "complete disregard of Plaintiff's equal protection rights[.]" ECF No. 25 at 9. However, he fails to set out what equal protection rights he claims have been violated. An equal protection claim arises when, without adequate justification, similarly-situated persons are treated differently by a governmental entity. U.S. Const. amend XIV. "To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Morrison v. Garraghty, 239 F.3d 648, (4th Cir. 2001). When the distinction is based on a "suspect classification" or effects the denial of a fundamental right, the constitutional scrutiny sharpens in focus to determine whether the "classification has been precisely tailored to serve a compelling governmental interest." See Plyler v. Doe, 457 U.S. 202, 216-17 (1982). However, when a plaintiff is not a member of a suspect class, he must prove that the distinction between himself and other inmates was not reasonably related to some legitimate penological purpose. See Turner v. Safley, 482 U.S. 78, 89 (1987). Here, Plaintiff has not asserted that he is a member of a protected class. Although Plaintiff makes a general claim, he has not alleged any person to whom he is similarly situated that was treated differently from him. Further, allegations which merely indicate disparity of treatment or even arbitrary administration of state powers, rather than instances of purposeful or invidious discrimination, are insufficient to show discriminatory intent. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987).

Plaintiff also alleges that the transfer has caused mental and physical harm to his mother. However, Plaintiff may not allege claims on behalf of his mother. See Laird v. Tatum, 408 U.S. 1 (1972); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482 (1982); Flast v. Cohen, 392 U.S. 83, 99 (1968)[a district court, when determining whether a plaintiff has standing to sue, must focus on the status of the party who has filed the complaint, such that the merits of the case are irrelevant]; Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506 (1972); Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981)[a prisoner cannot act as a "knight-errant" for others]. Cf. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)[a pro se prisoner cannot be an advocate for others in a class action].

Moreover, the Defendant, in his official capacity, is entitled to Eleventh Amendment immunity as to any claims for monetary damages. The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina, its integral parts, or its officials in their official capacities, by a citizen of South Carolina or a citizen of another state.⁷ See Alden v. Maine, 527 U.S. 706 (1999); College Savs. Bank v. Florida Prepaid Educ. Expense Bd., 527 U.S. 666 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)(reaffirming Hans v. Louisiana, 134 U.S. 1, 10 (1890) [holding that a citizen could not sue a state in federal court without the state's consent]; Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)[although express language of Eleventh Amendment only forbids suits by citizens of other States against a State, Eleventh Amendment bars suits against a State filed by its own citizens]; Alabama v. Pugh, 438 U.S. 781, 782 (1978); Will v. Michigan Dep't of State Police, 491 U.S. 58, 61-71 (1989); Edelman v. Jordan, 415 U.S. 651, 663 (1974)[stating that "when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its [Eleventh Amendment] sovereign immunity from suit even though individual officials are nominal defendants"](quoting Ford Motor Co. v. Dep't. of Treasury, 323 U.S. 459, 464 (1945)); see also Harter v. Vernon, 101 F.3d 334, 338-39 (4th Cir. 1996); Bellamy v. Borders, 727 F. Supp. 247, 248-50 (D.S.C. 1989); Coffin v. South Carolina Dep't of Social Servs., 562 F. Supp. 579, 583-85 (D.S.C. 1983); Belcher v. South Carolina Bd. of Corrs., 460 F. Supp. 805, 808-09 (D.S.C. 1978). While the United States Congress can override Eleventh Amendment immunity through legislation, Congress has not overridden the states' Eleventh Amendment immunity in § 1983 cases. See Quern v. Jordan, 440 U.S. 332, 343 (1979). Further, although a State may consent to a suit in a federal district court, Pennhurst, 465 U.S. at 99 & n.9, the State of South Carolina has not consented to such actions. Rather, the South Carolina Tort Claims Act expressly provides that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suit only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another state. S.C. Code Ann. § 15-78-20(e).

7 A suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office, and neither a State nor its officials acting in their official capacities are "persons" under § 1983. Will v. Michigan Dep't. of State Police, 491 U.S. at 71 (citing Brandon v. Holt, 469 U.S. 464, 471 (1985)). As such, it is no different from a suit against the State itself. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-166 (1985); Monell v. New York City Dep't. of Social Servs., 436 U.S. 658, 690, n. 55 (1978).

Finally, to the extent that Plaintiff is attempting to assert claims under South Carolina law, such claims should be dismissed if the above recommendations are adopted, as only state law claims would survive. Courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of "supplemental jurisdiction." See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). However, as Plaintiff has asserted no valid federal claim, this Court should not exercise supplemental jurisdiction over any state law claim.⁸ See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002)[affirming district court's dismissal of state law claims when no federal claims remained in the case]. Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999)["[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants"]. Thus, it is also recommended that any state law claims be dismissed without prejudice.

8 While a civil action for a state law claim would be cognizable in this Court on its own under the federal diversity statute, that statute requires complete diversity of parties and an amount in controversy in excess of seventy-five thousand dollars ($75,000.00). See 28 U.S.C. § 1332(a). Complete diversity of parties in a case means that no party on one side may be a citizen of the same State as any party on the other side. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978). For diversity purposes a prisoner's domicile is presumed to be where he was domiciled prior to incarceration. See Roberts v. Morchower, 956 F.2d 1163, 1992 WL 42885, at *1 (4th Cir. 1992); Polakoff v. Henderson, 370 F. Supp. 690 (N.D.Ga.1973), aff'd, 488 F.2d 977 (5th Cir. 1974). Here, Plaintiff and Defendant are both citizens of South Carolina, such that diversity of citizenship does not exist.

Recommendation

Based on the foregoing, it is recommended that the Court dismiss Plaintiff's Amended Complaint without prejudice and without issuance and service of process. Plaintiff's attention is directed to the important notice on the next page.

/s/_________

Bristow Marchant

United States Magistrate Judge July 24, 2019
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).