Opinion
CIVIL ACTION NO. 9:17-2702-DCC-BM
07-13-2018
James E. Mclean, Jr., # 17701-058, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, asserting claims relating to his medical care pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et. seq.. Plaintiff is a federal prison inmate at the Federal Correctional Institution in Estill, South Carolina (FCI-Estill).
The Defendant filed a Rule 12 motion to dismiss on March 23, 2018. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on March 26, 2018, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to respond adequately, the Defendant's motion may be granted, thereby ending his case. Plaintiff thereafter filed a memorandum in opposition to the Defendant's motion to dismiss on April 23, 2018, following which the Defendant filed a reply memorandum on May 1, 2018. Plaintiff then filed a sur reply on May 7, 2018.
The Defendant's motion is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C. The Defendant has filed a motion to dismiss. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Allegations of the Complaint
Plaintiff has submitted a twenty-six (26) page Complaint wherein he alleges that he suffers from a rare bone disease known as Rickets. Plaintiff alleges that if untreated, or improperly treated, Rickets can be "crippling". Plaintiff alleges that prior to his incarceration he was prescribed Vitamin D (taken daily) and phosphorous, which effectively treated his condition and allowed him to enjoy a somewhat normal life. See Complaint, ¶ ¶ 1-2. However, Plaintiff alleges that following his conviction on federal charges in November 2002, Plaintiff initially did not receive proper medical treatment for his condition while in county jails awaiting transfer to federal prison. Id., ¶ 3. Plaintiff alleges that when he was transferred to the Federal Bureau of Prisons (BOP) in 2004, medical staff initially provided him with a prescription for the "proper amount of Vitamin D", and that he was also provided with some calcium and phosphate. However, Plaintiff alleges that BOP medical staff subsequently reduced his Vitamin D and dropped the phosphate altogether. Id., ¶ ¶ 4-5. Plaintiff alleges that his "orthopedic doctor" who had treated him prior to his incarceration did not think Plaintiff needed to change his Vitamin D and calcium regimen, but that even though he forwarded a copy of his physician's letter to the BOP's medical staff, the BOP's medical staff continued to provide him with an inadequate amount of Vitamin D and gave him no phosphate. Id., ¶ ¶ 6-7.
"Rickets" is a condition that results in weak or soft bones in children, most commonly caused by a lack of Vitamin D, calcium or phosphate. In adults (such as the Plaintiff) this condition is also known as Inherent Vitamin D Deficiency. Rickets causes "an interruption in the development and mineralization of the growth plate of the bone with radiographic abnormalities, osteomalacia, bone pain, fatigability, growth retardation, and often hypotonia, convulsions and tetany." Schaffer v. Sec'y of Health & Human Servs., No. 03-1455V, 2013 WL 5824130, at * 4 (Fed.Cl. Sept. 19, 2013) (quoting Dorland's Illustrated Medical Dictionary 1644 (32nd ed. 2012)).
Plaintiff alleges that prior to his incarceration he was receiving fifty thousand IU per day, while the BOP only provided him two hundred IU per day. Id., ¶ ¶ 1, 4, 7.
Plaintiff alleges that as a result of the BOP's medical staff decisions, he "started having great pain in his knees and other joints". Plaintiff further alleges that after he was "called to court for his appeal", when he returned to the prison he went without his medicine "for a while", which caused him to start having "great back and joint pain". Id., ¶ ¶ 8-10. Plaintiff alleges that although his medications were eventually renewed, they were still at "inadequate" levels to properly treat his condition. Id., ¶ 11. Plaintiff alleges that after he was transferred to a different federal prison he was eventually given Vitamin D capsules of fifty thousand IU, but that he only received "one or so" per week, which was not enough. Moreover, Plaintiff alleges that he was still provided no phosphate, even though his "lab results suggested he needed phosphate". Id., ¶ 18.
Plaintiff alleges that after about three years at this facility (FCI-Butner), Plaintiff was transferred to FCI-Ashland, where he initially "went without any treatment for his health issue Rickets for many days". Plaintiff further alleges that although he did eventually receive his medicine, it was again "not sufficient" for his needs. After spending about two years at FCI-Ashland, Plaintiff was transferred to his current location at FCI-Estill. Id., ¶ ¶ 19-20. However, Plaintiff alleges that after his arrival at FCI-Estill, he was only given blood pressure medicine and was told that he had to buy vitamins from the commissary. Plaintiff alleges that as a result he was not prescribed any treatment for his Rickets until he was seen by a physician well over a year after he had arrived at FCI-Estill, but that even then he was only prescribed 2000 IU tablets to be taken twice a day, while the doctor never prescribed him any phosphate. Id., ¶ 21. Plaintiff alleges that he has "Vitamin D resist Rickets", which means that it takes a very large dosage of Vitamin D to effectively treat his condition. Even so, Plaintiff alleges that he has yet to receive the proper treatment at FCI-Estill, which is causing him to suffer "great pain in all of his major joints", affecting his ability to walk and move about, and that he "sleeps in pain as well". Id., ¶ ¶ 22-26.
Plaintiff also alleges that his condition has caused him to loose teeth, and that the medical personnel at the prison have not provided proper care for his dental needs. Id., ¶ ¶ 28-32. Plaintiff alleges that he was eventually told he would be allowed to get dentures, which required the extraction of Plaintiff's remaining teeth, but that the dentist refused to allow him [Plaintiff] to watch the procedure by holding a small hand mirror. Id., ¶ ¶ 34-36. Plaintiff then reviews the dental procedure he had for the extraction of his teeth, which Plaintiff alleges was not done properly, and alleges that the way his procedure was handled and its aftermath has resulted in him not being able to properly chew food. Id., ¶ ¶ 37-46, 51.
Plaintiff alleges that has suffered, and is continuing to suffer from, numerous medical problems as a result of the inadequate care he has received, and seeks monetary damages. Plaintiff attached ninety-nine (99) pages of affidavits and supporting documents to his Complaint. See generally, Plaintiff's Complaint, with attached exhibits.
Discussion
When considering a Rule 12 motion to dismiss, the Court is required to accept the allegations in the pleading as true, and draw all reasonable factual inferences in favor of the party opposing the motion. The motion can be granted only if the party opposing the motion has failed to set forth sufficient factual matters to state a plausible claim for relief "on its face". Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Vogt v. Greenmarine Holding, LLC, 318 F.Supp. 2d 136, 144 (S.D.N.Y. 2004)["[O]n a motion to dismiss, the Court does not weigh the strength of the evidence, and simply considers whether the [claim] alleges sufficient facts which, if true, would permit a reasonable fact finder to find [the party seeking dismissal of the claim] liable."]. Further, the Federal Court is also charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). Even so, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful review and consideration of the pleadings in this case and the arguments of the parties, and in light of the requirements of Rule 12 and the liberal construction given to pro se pleadings, the undersigned finds for the reasons set forth hereinbelow that the Defendant is entitled to dismissal of this case unless Plaintiff can comply with the medical affidavit requirement of S.C. Code Ann. § 15-36-100, as amended.
The FTCA waives sovereign immunity and allows suits against the United States for personal injuries caused by government employees acting within the scope of their employment. Under this Act, a plaintiff may recover a monetary award from the United States for damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope...of employment." 28 U.S.C. § 1346(b). Whether any government employee was negligent is to be determined "in accordance with the law of the place where the act or omission occurred," here the State of South Carolina. 28 U.S.C. § 1346(b)(1). In order to prove negligence in South Carolina, Plaintiff must prove by a preponderance of the evidence that 1) the Defendant had a legal duty of care; 2) the Defendant failed to discharge that duty; and 3) the Defendant's breach proximately caused him injury. Ajaj v. United States, 479 F.Supp.2d 501, 549 (D.S.C. 2007); Saab v. S.C. State Univ., 567 S.E.2d 231, 237 (S.C. 2002); Fisher v. Shipyard Village Council of Co-Owners, Inc., 760 S.E.2d 121, 129 (S.C.Ct.App. 2014); Hubbard v. Taylor, 529 S.E.2d 549 (S.C.Ct.App. 2000). A Plaintiff is required to show negligence with reasonable certainty, not through mere conjecture, and he may not attempt to prove negligence through the doctrine of res ipsa loquitur. Ajaj, 479 F.Supp.2d at 549; Eickhoff v. Beard-Laney, 20 S.E.2d 153, 155 (S.C. 1942); Crider v. Infinger Transportation Co., 148 S.E.2d 732, 734-735 (S.C. 1966).
Plaintiff has been at FCI Estill since at least 2013. Complaint, ¶ 33. Therefore, his only viable claims are those that may have occurred since he has been in South Carolina. See S.C. Code Ann. 15-3-545(A) (2005); see also Sims v. Amisub of South Carolina, Inc., 777 S.E.2d 379, 382 (S.C. 2015).
Defendant does not dispute that it has a legal duty of care for prisoners in its custody pursuant to 18 U.S.C. § 4042, which provides that the standard of duty owed by prison officials is that of "reasonable care". See Johnson v. U. S. Government, 258 F.Supp. 372, 376 (E.D.Va. 1966)[Under Section 4042, a prison official's duty requires only the exercise of ordinary diligence under the circumstance]; see also In re Agent Orange Product Liability Litigation, 635 F.2d 987, 996 (2d Cir. 1980) [dissenting] (citing Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979), cert. denied, 444 U.S. 980 (1979)); Harley v. United States, No. 08-820, 2009 WL 187588 at * 4 (D.S.C. Jan. 26, 2009).
The FTCA's waiver of sovereign immunity includes claims for medical malpractice, which is what Plaintiff asserts here. See Littlepaige v. United States, 528 Fed.Appx. 289, 291-292 (4th Cir. 2013). To establish a cause of action for medical malpractice in South Carolina, Plaintiff must prove the following facts by a preponderance of the evidence: 1) the presence of a doctor-patient relationship between the parties; 2) recognized and generally accepted standards, practices, and procedures which are exercised by competent physicians in the same branch of medicine under similar circumstances; 3) the medical or health professional's negligence, deviating from generally accepted standards, practices, and procedures; 4) such negligence being a proximate cause of the plaintiff's injury; and 5) an injury to the plaintiff. See Brouwer v. Sisters of Charity Providence Hospitals, 763 S.E.2d 200, 203 (S.C. 2014)(citing 27 S.C. Jur. Med. & Health Prof'ls § 10 (2014) (footnotes omitted); Smith v. United States, 119 F. Supp. 2d 561 (D.S.C. 2000)). However, as the Defendant correctly notes in its brief, in order to pursue a malpractice claim in South Carolina a plaintiff is first required to file "as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim . . . ."; see S.C. Code Ann. § 15-36-100; and a failure to file such an affidavit with the Complaint requires dismissal of the case. See Rotureau v. Chaplin, No. 09-1388, 2009 WL 5195968, at * 6 (D.S.C. Dec. 21, 2009). Although Plaintiff's claim has been filed in federal court under the FTCA, and not in state court, the filing of such an affidavit is nonetheless a mandatory prerequisite to the filing of a malpractice claim against the United States under the FTCA in this District. See Chappie v. United States, No. 13-1790, 2014 WL 3615384 at * * 1, 5 (D.S.C. July 21, 2014); Jelks v. United States, No. 12-3451, 2014 WL 1096301 at * 3 (D.S.C. Mar. 19, 2014); Millmine v. Harris, No. 10- 1595, 2011 WL 317643 (D.S.C. Jan. 31, 2011) [Holding that pre-suit notice and expert affidavit requirements in S.C. Code Ann. § 15-36-100 and 15-79-125 are the substantive law in South Carolina]; Oakman v. Lincare, Inc., No. 13-428, 2013 WL 3549848 (D.S.C. July 10, 2013).
Medical malpractice is a category of negligence, but differs from a claim of ordinary negligence. Cf. Dawkins v. Union Hosp. Dist., 758 S.E.2d 501, 503-504 (S.C. 2014) [Distinguishing between claims of medical malpractice and ordinary negligence]. Plaintiff's claim here is obviously one for medical malpractice, not for ordinary negligence, because it involves the alleged "failure of [medical professionals] to exercise that degree of care and skill that is ordinarily employed by the profession under similar conditions and in like surrounding circumstances". Turbeville v. Wilson, No. 05-517, 2005 WL 7084352, at * 3 (S.C. Ct. App. Sept. 12, 2005) [Setting forth definition of a medical malpractice claim in South Carolina].
The Defendant argues in its motion that this case is subject to dismissal because Plaintiff failed to file the required expert affidavit with his Complaint. Jelks, 2014 WL 1096301, at * 3 [Before filing or initiating a claim for medical malpractice in South Carolina, a plaintiff must contemporaneously file a "notice of intent to file suit" and expert affidavit which identifies at least one negligent act or omission claimed to exist]. Plaintiff responds to the Defendant's argument by asserting that he has provided three (3) "expert" affidavits as attachments to his Complaint, thereby satisfying the affidavit requirement. These affidavits are from Harold Spears, Stanley Marable, and David Pon, all three of whom are, like Plaintiff, inmates with the Federal Bureau of Prisons. Although these affidavits reflect that the affiants were all doctors prior to becoming federal prison inmates (the affidavits indicate that Spears was a family practitioner, Marable was a dentist, and Pon was an opthomologist), none of these individuals are currently licensed to practice medicine. Even so, each affiant offers a medical opinion about Plaintiff's condition and level of care. Spears attests in his affidavit that he observed the Plaintiff in 2016 and has reviewed Plaintiff's medical records, and that Plaintiff's medical treatment plan was "inadequate/ineffective, and falls below the standard of medical practices/care for [Plaintiff's] medical condition". Marable attests in his affidavit that he his "familiar" with the Plaintiff, that he has had an opportunity to review Plaintiff's medical and dental records as well as his medication summary report for the period March 14, 2014 through March 16, 2017, and that the BOP failed to "properly treat [Plaintiff's] health condition", which is "the cause of [Plaintiff's] loss of teeth". Finally, Pon attests that he is "familiar" with the Plaintiff and has had an opportunity to review Plaintiff's medical records for the period March 2014 through March 2017, and that for the time period he reviewed the BOP "did not sufficiently or adequately provide the Plaintiff with the proper treatment or amounts of Vitamin D, calcium, and phosphate for his health condition . . . .". See, generally, Plaintiff's Affidavits.
The Defendant argues, however, and the undersigned agrees, that these affidavits do not satisfy the filing requirement in this case. The statutory requirement is for the filing of an affidavit from a "qualified expert witness". Ranucci v. Crain, 723 S.E.2d 242, 247 (S.C.Ct. App. 2012) (emphasis added), reversed on other grounds, 763 S.E.2d 189 (S.C. 2014). This requires the expert witness for a malpractice action to either be licensed by the appropriate regulatory agency to practice his or her profession, or be an individual who has "scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual's study, experience, or both". See S.C.Code Ann. § 15-36-100(A), as amended.
First, Plaintiff does not dispute that none of his three expert witnesses is licensed to practice medicine. Additionally, since all three of these affiants' medical licenses have been revoked, Defendant further argues that the offering of medical expert testimony by them would constitute the unauthorized "practice of medicine" in violation of state law. See S.C.Code Ann. § 40-47-200, as amended [providing that any person who practices or offers to practice medicine in South Carolina in violation of state law is guilty of a misdemeanor, and, upon conviction, must be imprisoned not more than one year or fined not more than $50,000]; see also S.C.Code Ann. § 40-47-20(36), as amended [defining the "practice of medicine" to include undertaking to diagnose a medical condition, rendering a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient, rendering a determination of medical necessity or a decision affecting the diagnosis and/or treatment of a patient, or testifying as a physician in an administrative, civil, or criminal proceeding by expressing an expert medical opinion].
Plaintiff correctly points out that in Order of the South Carolina Supreme Court No. 2006-08-24-1, the South Carolina Supreme Court determined that a physician licensed in another state does not have to obtain a license to practice medicine in South Carolina before offering expert medical testimony in a court proceeding in this state. However, that Order does not help the Plaintiff here. None of the Plaintiff's experts are currently "physicians". Moreover, the Supreme Court's ruling was based on a finding that to bar out of state physicians' testimony unless they obtain a license in South Carolina would "overlook[ ] the fact that the physician may have treated the patient in the physician's home jurisdiction [or that] the physician, although at one time licensed and providing treatment to the patient in South Carolina, has relocated out of this state". None of that rationale applies here, as (in addition to none of Plaintiff's experts currently being licensed physicians) none of Plaintiff's "experts" have ever treated or even examined him. The undersigned is also constrained to note that allowing such testimony in this case would open the door to non-licensed inmates being allowed to offer testimony as expert medical witnesses in other general (non-prisoner) civil litigation.
Plaintiff's experts also do not meet the "specialized knowledge" requirement of the statute. In Eades v. Palmetto Cardiovascular and Thoracic, 810 S.E.2d 848 (S.C. 2018), the South Carolina Supreme Court held that an affiant may qualify as an expert based on the "other specialized knowledge" language of the statute where an affidavit is submitted "from a doctor who is not certified in or does not practice in the same area of medicine as the defendant doctor, but otherwise possesses specialized knowledge to assist the trier of fact". Id., pp. 851-852. None of the affiants here are currently "doctors", nor are they "practicing" medicine. In Eades, the State Supreme Court found that an affidavit was sufficient to meet the "specialized knowledge" requirement where it was from a doctor who, although he did not practice in the particular area of the claimant's medical issue in that case, nonetheless explained that "his active practice of medicine" included the evaluation and treatment of medical conditions which qualified him to give expert testimony on the condition at issue in that case. Id., p. 852. Here, of course, as noted, none of Plaintiff's three affiants are in the "active practice of medicine" - they are prison inmates who have had their medical licenses revoked and who under state law are not qualified to express an expert medical opinion. See S.C.Code Ann. § 40-47-20(36)(h), as amended. Nor does South Carolina Supreme Court Order No. 2006-08-24-1 help Plaintiff's affidavits meet the "specialized knowledge" requirement of the statute, as in addition to addressing the state licensure requirement (see, n. 6, supra) in that Order, the Court further stated that its Order was intended to also allow testimony by "prominent national experts" or "leading medical scholars". None of Plaintiff's "experts" meet this criteria.
Moreover, in addition to the defects with Plaintiff's expert affidavits discussed hereinabove, the Defendant correctly notes that allowing federal prison inmates to present themselves as expert witnesses in medical malpractice cases would disrupt the safe and orderly operation of its institutions, that it would be neither safe nor practical to have prisoners who previously worked in the medical or dental field but who are no longer licensed to perform diagnoses and recommend treatment for fellow prisoners, and that allowing such conduct would serve to "create doubt in the minds of the prisoner population as to the decisions made by the institution Medical Staff and would have the inherent ability to create hostile discourse and animosity between the prisoner population and the qualified, licensed BOP medical staff charged with prisoner medical care". Defendant's Brief, p. 18; see also BOP Program Statement 5270.09, Inmate Discipline Program [prohibiting conduct which disrupts or interferes with the security or orderly running of the institution].
Therefore, Plaintiff's affidavits fail to meet the affidavit requirements of S.C.Code Ann § 15-36-100. In his reply brief, Plaintiff does correctly point out that there is also a "common knowledge" exception to the affidavit requirement, which applies where the claim "is of common knowledge or experience so that no special learning is needed to evaluate the defendant's conduct." Brouwer, 763 S.E.2d at 203-204 (citing Carver v. Med. Soc'y of S.C., 334 S.E.2d at 125, 127 (S.C.Ct.App. 1985)). However, this exception only applies where "the defendant's [alleged] careless acts are quite obvious, [such that] the plaintiff need not present expert testimony to establish the standard of care." Brouwer, 763 S.E.2d at 204. While Plaintiff argues that the "common knowledge" exception should apply to his claim, this exception would not apply here, as the gravamen of Plaintiff's claim is that he did not receive proper medical care and attention for a chronic condition due to the failure of medical professionals to provide proper prescriptions and care based on the special circumstances of his condition, and in light of the various x-ray results, laboratory reports, and conflicting medical advice and disputes surrounding his case. As such, it is self evident that Plaintiff would need to present "expert testimony to establish the standard of care" for his claim. Brouwer, 763 S.E.2d at 203-204. Therefore, this argument is without merit.
Finally, the undersigned is constrained to note that, rather than relying on affidavits from fellow prison inmates to try to advance his case, Plaintiff has himself identified two apparently qualified medical professionals in his pleading and in his response to the Defendant's motion from whom he could have instead obtained the required medical affidavit. In his Complaint Plaintiff references his "orthopedic doctor" who "has treated Plaintiff's health issue Rickets nearly all of his life", and even states that he had gotten a letter from this physician about his health needs that he had provided to the BOP. Complaint, ¶ 6. Additionally, in his response to the Defendant's motion to dismiss, Plaintiff states that he is now (since the filing of this lawsuit) finally receiving proper medical care for his condition from "a competent doctor, Dr. Lipiane". Plaintiff argues in his response brief that after Dr. Lipiane started treating him and reviewed his medical records, he ordered that Plaintiff receive the proper medical care, which has had a "profound effect" on Plaintiff's condition. See Plaintiff's Brief, pp. 13-15. Plaintiff could cure the filing defect for this lawsuit by submitting an affidavit supporting his claim from either one of these two physicians. Therefore, although the statutory requirement is for the Plaintiff to have filed the required affidavit with his Complaint, in light of Plaintiff's pro se status and his belief that he had already complied with this requirement, and in order to allow for the development of a potentially meritorious case, rather than dismiss this case the Court could, in the alternative, give Plaintiff another opportunity to file the required affidavit within a set period of time.
Plaintiff even attached some treatment records from Dr. Lipiane as Attachment H to his response brief.
Conclusion
Based on the foregoing, it is recommended that Plaintiff be provided an opportunity to file a supporting affidavit from a qualified expert witness in compliance with S.C.Code Ann. § 15-36-100 within thirty (30) days of the date of any Order of the Court adopting this recommendation. If Plaintiff does so, then the Defendant's currently filed motion to dismiss should be denied. If, however, Plaintiff fails to file the required affidavit within the time period provided, then the Defendant's motion should be granted, and this case should be dismissed.
This would not prevent the Defendant from challenging Plaintiff's new affidavit in a new motion to dismiss, if the Defendant believes it would be entitled to do so. See S.C.Code Ann. § 15-36-100(E), as amended.
The parties are referred to the Notice Page attached hereto. July 13, 2018
Charleston, South Carolina
/s/_________
Bristow Marchant
United States Magistrate Judge
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).