Opinion
2:20-cv-01527-DCC-MGB
06-29-2021
Montaine Lawton, Plaintiff, v. South Carolina Department of Corrections, Captain Travis Laquinton Reese, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff, through counsel, brings this action under 42 U.S.C. § 1983 and state law. Before the Court is Defendant South Carolina Department of Corrections' (“SCDC”) Motion for Summary Judgment. (Dkt. No. 21.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A) and Local Rule 73.02(B)(2)(d), D.S.C., all pretrial matters in this case were referred to the undersigned for consideration. For the reasons stated herein, the undersigned recommends Defendant SCDC's Motion for Summary Judgment be granted and Plaintiff's negligence/gross negligence claim be dismissed. In the alternative, should the District Court find merit to this claim, the undersigned recommends the request to dismiss the claim against SCDC for costs of future dental care should be denied.
BACKGROUND
This action arises from an alleged assault at Broad River Correctional Institution by Defendant Travis Laquinton Reese (“Reese”) on August 1, 2018. (Dkt. No. 1-1.) Plaintiff alleges that while he “was being escorted to medical, Defendant Reese, maliciously and with the purpose of causing harm, pushed Plaintiff to the ground, causing Plaintiff to fall to the ground and sustain bodily injuries.” (Id. at 3.) Plaintiff alleges that he “was restrained in leg shackles with his hands cuffed behind his back” during the assault. (Id.) According to Plaintiff, as a result of Defendants' conduct, he “sustained pain and suffering, loss of enjoyment of life, permanent impairment, medical care and expenses, experienced trauma, mental anguish and distress, and was otherwise injured and damaged.” (Id.) Plaintiff filed the instant action in state court on August 29, 2019, and it was removed to federal court on April 21, 2020. (Dkt. No. 1.)
Plaintiff alleges a § 1983 excessive force claim against Defendant Reese and a negligence/gross negligence claim under South Carolina law against Defendant SCDC. Under the state law cause of action, Plaintiff alleges his injuries and damages
were directly and proximately caused by the following careless, reckless, wilful, and grossly negligent acts of [SCDC] . . .
(a) In failing to follow prescribed organizational values;
(b) In failing to follow prescribed policies, procedures and/or safety rules;
(d) In failing to properly train its officers such that they did not use excessive force; [and]
(e) In failing to supervise its officers in their actions and allowing the Officers to use excessive force against Plaintiff and inflict and cause personal injury, mental and emotional distress, anguish and suffering[.](Dkt. No. 1-1 at 4.)
While in state court, the Court granted SCDC's Motion to strike subsections 18(c) and (f) from the Complaint. (Dkt. No. 1 at 14-15.)
Per the First Amended Scheduling Order, the deadline for Plaintiff to identify his expert witnesses was September 28, 2020. (Dkt. No. 17.) Per the Second Amended Scheduling Order, discovery was due by March 29, 2021 and dispositive motions were due by April 26, 2021. (Dkt. No. 19.) A trial date has not yet been scheduled. Defendant SCDC filed its Motion for Summary Judgment on April 26, 2021. (Dkt. No. 21.) Plaintiff filed a response in opposition on May 11, 2021 (Dkt. No. 23), to which SCDC replied on May 18, 2021 (Dkt. No. 24). Defendant Reese has not filed any dispositive motions, and thus, Plaintiff's § 1983 excessive force claim will proceed past the summary judgment stage. SCDC's Motion for Summary Judgment has been fully briefed and is ripe for review.
STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
DISCUSSION
Defendant SCDC seeks summary judgment on the only claim asserted against it- Plaintiff's state law negligence/gross negligence claim. (Dkt. No. 21 at 4-8.) In the alternative, SCDC asserts that it is entitled to summary judgment on “Plaintiff's claim for the costs of future dental care and the accompanying consequential damages arising from such care, including pain and suffering.” (Id. at 9-11.) The undersigned considers these arguments below.
A. Negligence/Gross Negligence Claim
The Complaint alleges that SCDC acted in a grossly negligent and reckless manner by: (1) “failing to follow prescribed organizational values”; (2) “failing to follow prescribed policies, procedures and/or safety rules”; (3) “failing to properly train its officers such that they did not use excessive force”; and (4) “failing to supervise its officers in their actions and allowing the Officers to use excessive force against Plaintiff and inflict and cause personal injury, mental and emotional distress, anguish and suffering.” (Dkt. No. 1-1 at 4.)
The South Carolina Tort Claims Act (“SCTCA”) provides that “a governmental entity is not liable for a loss resulting from responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any . . . prisoner, inmate, or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner.” S.C. Code Ann. § 15-78-60(25) (2005) (emphasis added). The SCTCA is the exclusive remedy for individuals suing government employees acting within the scope of their employment. S.C. Code Ann. § 15-78-70(a). The SCTCA specifies that “[i]n the event that the employee is individually named, the agency or political subdivision for which the employee was acting must be substituted as a party defendant.” S.C. Code Ann. § 15-78-70(c). The statute covers employee conduct insofar as it is not “outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15- 78-60; see also S.C. Code § 15-78-70(b); Smith v. Ozmint, 394 F.Supp.2d 787, 792 (D.S.C. 2005) (holding “a state employee can, in these limited circumstances, be held personally liable by a federal court for some intentional torts committed within the scope of his employment”); Roberts v. City of Forest Acres, 902 F.Supp. 662, 671 (D.S.C. 1995) (noting that an employee of a government entity is personally liable for a tort, only when the employee's conduct falls within the exceptions listed in § 15-78-70(b)).
“Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. It is the failure to exercise slight care.” Jinks v. Richland Cty., 355 S.C. 341, 345, 585 S.E.2d 281, 283 (2003) (internal citation omitted). “The term is relative and means the absence of care that is necessary under the circumstances.” Moore by Moore v. Berkeley Cty. Sch. Dist., 326 S.C. 584, 591, 486 S.E.2d 9, 13 (Ct. App. 1997). To plead the following elements to state a claim for gross negligence, a plaintiff must show: (1) a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty by a grossly negligent act or omission; and (3) damages proximately resulting from the breach of duty. See Cockrell v. Lexington Cty. Sch. Dist. One, No. 3:11-cv-2042-CMC, 2011 WL 5554811, at *5 (D.S.C. Nov. 15, 2011). “A plaintiff alleging negligence on the part of a governmental actor or entity may rely either upon a duty created by statute or one founded on the common law.” Edwards, 688 S.E.2d at 128. “Under the ‘public duty rule,' ‘statutes which create or define the duties of a public office create no duty of care towards individual members of the general public.'” Newkirk, 240 F.Supp.3d at 437 (quoting Edwards, 688 S.E.2d at 129). Gross negligence is a mixed question of law and fact and should be presented to the jury unless the evidence supports only one reasonable inference. Bass v. S.C. Dep't of Soc. Servs., 414 S.C. 558, 571, 780 S.E.2d 252, 259 (2015).
As an initial matter, the parties first dispute whether Plaintiff's negligence/gross negligence claim seeks relief against SCDC based directly on Defendant Reese's conduct. More specifically, Plaintiff argues that “Defendant SCDC is responsible for the acts committed by Defendant Reese.” (Dkt. No. 23 at 5.) SCDC argues that “Plaintiff has asserted no vicarious liability claim against SCDC for the intentionally tortious conduct of the Defendant Travis Reese.” (Dkt. No. 24 at 1.) The undersigned agrees. Plaintiff's negligence/gross negligence claim, as pled, hinges on SCDC's own conduct, and it should be analyzed on that basis.
Specifically, the Complaint does not contain any allegations indicating SCDC is being held directly responsible for Reese's actions. Under the negligence/gross negligence cause of action, the Complaint alleges it was only SCDC's policy/value violations, its negligent supervision, or its negligent training, that constituted gross negligence under the SCTCA. The other allegations in the Complaint confirm this interpretation. The Complaint alleges that SCDC had the “right and/or power to direct and control the manner in which its employees and/or agents executed their duties.” (Dkt. No. 1-1 at 2.) This allegation supports a negligent supervision or negligent training claim. The Complaint further alleges that when Defendant Reese pushed Plaintiff to the ground, he did so “maliciously and with the purpose of causing harm.” (Id. at 3.) In alleging Reese intended to cause Plaintiff harm, the Complaint brings Reese's conduct outside the scope of employee conduct for which SCDC would be responsible under the SCTCA. See S.C. Code Ann. § 15-78-60.
While this allegation alone would not necessarily preclude a gross negligence claim against SCDC, the Complaint does not contain any allegations indicating Plaintiff seeks to hold SCDC vicariously liable for Reese's actions. Thus, this matter differs from Newkirk v. Enzor, 240 F.Supp.3d 426 (D.S.C. 2017). In Newkirk, the court found summary judgment for the South Carolina Department of Public Safety (“SCDPS”) was not warranted under § 15-78-60, even where the complaint alleged the employee's actions were “intentional and based on malice.” 240 F.Supp.3d at 436. Critically, under the negligence/gross negligence cause of action against SCDPS, the Newkirk complaint focused on the employee's alleged grossly negligent conduct and alleged SCDPS was vicariously liable for its employee's conduct. See No. 2:13-cv-01635-RMG; Dkt. No. 1-1 at 10-11. As noted above, the Complaint in the instant matter contains no such allegations anywhere in the pleading.
Having clarified the scope of Plaintiff's negligence/gross negligence claim against SCDC, the undersigned turns to SCDC's arguments for summary judgment. SCDC argues it is entitled to summary judgment because: (1) the claims based on an alleged failure to follow organizational principles and policies fail under “the public duty rule and common law principles”; and (2) Plaintiff has failed to establish a genuine issue of material of fact sufficient to establish any claims based on supervisory liability or failure to train. (Dkt. No. 21-1 at 4-8.)
1. Failure to Follow Organization Values and Policies
SCDC first asserts that the portion of the Complaint referring to “organizational values” and “prescribed policies, procedures, and/or safety rules” appears to rely on S.C. Code Ann. § 24-1-20 and the “SCDC Mission Statement.” (Dkt. No. 21-1 at 4-8.) SCDC argues that these materials cannot give rise to a private right of action under the public duty rule. SCDC further argues that any “claims based on the failure to enforce policies and procedures are barred by sovereign immunity under Section 15-78-60(4) of the [SCTCA].” (Id. at 6.) Section 15-78-60(4) provides that “[A] governmental entity is not liable for loss resulting from. . . . adoption, enforcement, or compliance with any law or failure to adopt or enforce any law, whether valid or invalid, including, but not limited to, any charter, provision, ordinance, resolution, rule, regulation, or written policies.”
In response, Plaintiff first appears to argue that SCDC violated an accepted standard of care separate from any policies or statutes. (Dkt. No. 23 at 6.) However, Plaintiff does not specify a common law duty of care that applies here. “When the duty is founded on the common law, we refer to this as a legal duty arising from special circumstances.” Newkirk, 240 F.Supp.3d at 437-38 (citation and internal marks omitted). Because Plaintiff has not offered any special circumstances establishing a common law duty of care owed by SCDC to Plaintiff in this instance, the undersigned does not find merit in Plaintiff's argument. See Smith v. Koon, No. 3:19-CV-02155-JMC, 2021 WL 1172692, at *14 (D.S.C. Mar. 29, 2021) (dismissing negligence/gross negligence claim because “Plaintiffs have not alleged or otherwise shown that any special circumstance arose to create a common law duty to bind Defendants to act”).
In short, it appears Plaintiff alleges a duty arises from S.C. Code Ann. § 24-1-20 and SCDC's mission statement. S.C. Code Ann. § 24-1-20 provides:
It shall be the policy of this State in the operation and management of the Department of Corrections to manage and conduct the Department in such a manner as will be consistent with the operation of a modern prison system, and with the view of making the system self-sustaining, and that those convicted of violating the law and sentenced to a term in the State Penitentiary shall have humane treatment, and be given opportunity, encouragement and training in the matter of reformation.
According to Plaintiff, “SCDC's mission policy states, in part: ‘The mission of the [SCDC] is: Safety-we will protect the public, our employees, and our inmates.'” (Dkt. No. 23 at 9 (citing http://www.doc.sc.gov/).) Plaintiff also cites the following testimony from SCDC's 30(b)(6) deposition:
The link cited by Plaintiff does not contain the “mission policy” quoted by Plaintiff.
Q. And what does [SCDC's] mission statement say about safety?
A. . . . It says to provide for the safety of the public, the staff, volunteers and the offenders.
Q. Okay. And why does SCDC provide for safety of our offenders, who are the inmates?
A. Because they are wards of the State, and it's part of our responsibility to ensure their safety, as well as the safety of our staff and anyone else who enters the institutions or part of the agency.
Q. Okay. And is that a mission that SCDC wants their employees to follow?
A. It's imperative that it's followed. . . . Because it's one of the things we are charged with, is providing for the safety, safety for the public, safety for those inside.(Dkt. No. 23-2 at 3.)
However, as SCDC argues, under S.C. Code Ann. § 15-78-60(4), SCDC cannot be liable for loss resulting from failure to enforce any law, including “any charter, provision, ordinance, resolution, rule, regulation, or written policies.” The statute and mission statement cited by Plaintiff fall within the scope of section 15-78-60(4) and therefore, cannot support a negligence/gross negligence claim. Further, the public duty rule applies here. The “public duty” rule presumes that statutes which create or define the duties of a public office have the essential purpose of securing the general welfare and safety of the public, and it holds that such statutes create no duty of care towards individual members of the general public. Arthurs ex rel. Estate of Munn v. Aiken County, 346 S.C. 97, 551 S.E.2d 579 (2001). Plaintiff fails to make any compelling argument that the statute or mission statement at issue have the essential purpose of protecting identifiable individuals from a particular harm and thereby create a “special duty” to support a negligence/gross negligence action. See Summers v. Harrison Const., 298 S.C. 451, 456, 381 S.E.2d 493, 496 (Ct. App. 1989) (finding statute did not create a duty of care towards individual members of the general public and therefore it was barred by the public duty rule; no “special duty” was created). Accordingly, the undersigned recommends granting SCDC summary judgment on Plaintiff's negligence/gross negligence claims based on an alleged failure to follow organizational values and policies.
2.Negligent Supervision and Negligent Failure to Train
SCDC next argues that Plaintiff has failed to establish a genuine issue of material of fact sufficient to establish any negligence claims based on supervisory liability or failure to train. (Dkt. No. 21-1 at 6-8.) More specifically, SCDC argues that there is no evidence “SCDC officials knew or should have known that Reese posed a risk of mistreating an inmate by pushing him to the ground while in restraints, as what occurred on August 1, 2018.” (Id. at 7.)
Allegations of negligent training and supervision fall under the SCTCA. See Singleton v. Town of Estill, No. 9:12-cv-3506-SB, 2013 WL 4027765, at *6 (D.S.C. Aug. 6, 2013) (holding that a plaintiff's claims, which included a claim of negligent training by the town of Estill, were “brought pursuant to the South Carolina Tort Claims Act.”); DiLorenzo v. S.C. Dep't of Corr., No. 2:10-cv-02356-RMG, 2010 WL 5389994, at *3 (D.S.C. Dec. 22, 2010). An employer is liable under a theory of negligent supervision when an employee:
(1) is upon the premises of the employer, or is using a chattel of the employer,
(2) the employer knows or has reason to know that he has the ability to control his employee, and
(3) the employer knows or should know of the necessity and opportunity for exercising such control.Moore by Moore v. Berkeley Cty. Sch. Dist., 326 S.C. 584, 590, 486 S.E.2d 9, 12 (Ct. App. 1997) (citing Degenhart v. Knights of Columbus, 309 S.C. 114, 115-17, 420 S.E.2d 495, 496 (1992)).
Whether negligent training and negligent supervision are distinct torts in South Carolina is not settled. See Holcombe v. Helena Chem. Co., 238 F.Supp.3d 767, 772 (D.S.C. 2017) (holding that “negligent training is merely a specific negligent supervision theory by another name.”); Gainey v. Kingston Plantation, No. 4:06-cv-3373-RBH, 2008 WL 706916, at *7 n. 4 (D.S.C. Mar. 14, 2008) (“It does not appear that South Carolina recognizes a claim for negligent training separate and apart from one for negligent supervision.”); but see Hamilton v. Charleston Cty. Sheriff's Dep't, 399 S.C. 252, 254, 731 S.E.2d 727, 728 (Ct. App. 2012) (affirming the trial court which “granted the [defendant's] directed verdict motion on the negligent training claim, but denied the [defendant's] motion on the negligent supervision claim”). Regardless, courts regularly find that under both claims, “the key question is whether the employer knew or should have known of the danger the employee posed to others.” Holcombe, 238 F.Supp.3d at 773; Snowden v. United Rentals (N. Am.) Inc., No. 2:14-CV-2740-PMD, 2015 WL 5554337, at *6 n.6 (D.S.C. Sept. 21, 2015) (supervisory liability and negligent training require “the court to focus specifically on what the employer knew or should have known about the specific conduct of the employee in question.” (internal quotations and citations omitted)); James v. Kelly Trucking Co., 377 S.C. 628, 661 S.E.2d 329, 330 (2008) (“[W]here an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training . . . the employee.”).
Here, Plaintiff has failed to establish a genuine issue of material fact that SCDC knew or should have known that Defendant Reese posed a danger to others. In his brief, Plaintiff cites the following 30(b)(b) deposition testimony to support notice to SCDC:
Q. So is that three times that SCDC has documented Officer Reese was negligent?
A. Yes, sir.(Dkt. No. 23-2 at 6.) In the same deposition, SCDC stated there was not “anything in the corrective action history” that had “anything regarding the use of force and Captain Reese.” (Id. at 5.) Rather, Reese's prior negligence charges were for “violation of rules and regulations, unprofessional conduct” and “unprofessional conduct, negligence in carrying out job responsibilities in a security and non-security setting.” (Id. at 5-6.)
This action hinges on Reese's alleged unreasonable use of force against Plaintiff. As SCDC argues, there is no evidence indicating notice to SCDC that Reese posed a danger of using unreasonable force on inmates prior to the incident at issue. See Snowden, 2015 WL 5554337, at *6 (“Where, as here, the offending employee's prior conduct is at issue, comparing that prior conduct to the incident giving rise to the lawsuit may inform that analysis.”). Accordingly, even when construing the evidence in the light most favorable to Plaintiff, the negligence/gross negligence claims based on negligent supervision and negligent training fail as a matter of law. See Moore by Moore, 326 S.C. at 591-92 (“[T]he crux of Moore's case is the sexual conduct of an employee of a public entity. Absent some evidence indicating notice to the District of Steward's inappropriate sexual proclivities, there is no basis to conclude the District knew or should have known of the necessity for supervising her conduct outside the classroom.”).
In sum, Plaintiff has failed to establish a genuine issue of material fact exists with respect to any of the bases for his negligence/gross negligence claim against SCDC. The undersigned therefore recommends this claim be dismissed with prejudice.
B. Claim for Costs of Future Dental Care
Should the District Court find merit to Plaintiff's negligence/gross negligence claim, the undersigned addresses SCDC's remaining arguments in an abundance of caution. SCDC argues that Plaintiff failed to designate any expert witnesses to support his claim for the costs of future dental care by the requisite deadline, and therefore, SCDC is entitled to summary judgment on this claim. (Dkt. No. 21-1 at 9-11.) Here, SCDC is referring to Plaintiff's “Proposed Treatment Plan, ” which was prepared by “Ammons Dental by Design” and shows costs of $18,582 in future dental care. (Id. at 9.) According to SCDC, the Plan is dated July 17, 2020, but it was not produced to SCDC until March 16, 2021. (Id.) SCDC contends that expert testimony is required to support the costs identified in the Plan, and that Plaintiff failed to timely disclose any expert witnesses. (Id.) The applicable Scheduling Order shows Plaintiff's deadline to disclose his expert witnesses was September 28, 2020. (Dkt. No. 17.)
In response, Plaintiff disputes that his treating dentists must be identified as experts. (Dkt. No. 23 at 12-14.) Plaintiff further refers to his responses to Defendant Reese's interrogatories, wherein Plaintiff identified the following treating “medical providers”: Michael J. Engel, DMD; and Ammons Dental by Design. (Dkt. No. 23 at 12; Dkt. No. 23-4 at 5.) According to Plaintiff, because SCDC had notice of Plaintiff's treating providers, it cannot claim to be prejudiced or surprised by their untimely designation as experts. (Dkt. No. 23 at 12-13.)
“In order to recover for future consequences of an injury, the evidence must establish to a ‘reasonable certainty' that the future consequences will actually occur.” Roberson v. United States, No. 4:09-cv-00491-RBH, 2010 WL 4822325, at *12 (D.S.C. Nov. 22, 2010) (quoting Haltiwanger v. Barr, 258 S.C. 27, 32, 186 S.E.2d 819, 821 (1972).” Any award of future medical expenses must be based upon something more than mere speculation.” Id. “In proving future medical expenses, ‘the value of such care [is] established through expert testimony. Obviously, experts will include medical doctors.'” Id. (quoting Terry E. Richardson, Jr. & Daniel S. Haltiwanger, South Carolina Damages 2-17 (2004) (citations omitted)). Relatedly, “a treating physician's testimony about a patient's diagnosis, prognosis, and future medical care is opinion testimony that falls under Rule 26(a)(2)(A)'s expert disclosure requirement.” Stogsdill v. S.C. Dep't of Health & Hum. Servs., No. 3:12-cv-0007-JFA, 2017 WL 3142497, at *15 (D.S.C. July 25, 2017), aff'd sub nom. Stogsdill v. Azar, 765 Fed.Appx. 873 (4th Cir. 2019) (citing Fed.R.Evid. 702).
“Rule 37 governs situations where a party discloses an expert witness after the deadline for making such disclosures.” Simmons v. Corizon Health, Inc., No. 1:14-cv-730, 2016 WL 4537744, at *2 (M.D. N.C. Aug. 29, 2016). Specifically, Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that a party who fails to timely identify an expert witness “is not allowed to use that . . . witness . . . unless the failure [to timely identify the witness] was substantially justified or is harmless.”
After careful review, the undersigned finds expert testimony is required to support Plaintiff's claim for costs of future dental care and he should have disclosed his expert witnesses under Rule 26(a)(2)(A). While Plaintiff offers no basis for the late disclosure of his expert witnesses, the undersigned recommends that the untimely disclosure is harmless in this instance because the case has only been pending approximately one year, and there is not yet a date certain for trial. In other words, there is still time for Defendants to depose the designated expert witnesses. While Plaintiff indicates the dentists at Ammons Dental by Design are his expert witnesses, he should immediately identify the actual names of the dentists at this practice.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that SCDC's Motion for Summary Judgment (Dkt. No. 21) be GRANTED, and the negligence/gross negligence claim against SCDC be dismissed with prejudice. In the alternative, should the District Court find merit to this claim, the request to dismiss the claim against SCDC for costs of future dental care should be DENIED.
IT IS SO RECOMMENDED.
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:
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).