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recommending grant of summary judgment where plaintiff alleged an Eighth Amendment claim based on being given only shower shoes to wear and explaining that "alleged injuries of 'wet feet' and 'coldness' are not sufficiently serious to justify relief"
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C/A No.: 5:17-cv-2785-DCC-KDW
12-17-2018
Kelvin A. Canada, Plaintiff, v. Bryan P. Stirling, Michael McCall, Joette Scarborough, Willie Davis, Andrea Thompson, and Vaughn Jackson, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, brought this civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights. This matter is before the court on the Defendants' Motion for Summary Judgment, filed July 18, 2018. ECF No. 63. As Plaintiff is proceeding pro se, the court entered a Roseboro order on July 19, 2018, advising Plaintiff of the importance of such motions and the need for him to file an adequate response. ECF No. 65. Plaintiff responded to Defendants' motion on August 16, 2018. ECF No. 68. Defendants did not reply. Accordingly, this motion is now ripe for consideration.
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (requiring that the court provide explanation of dismissal/summary judgment procedures to pro se litigants).
This case was 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 Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Because this motion is dispositive, a Report and Recommendation is entered for the court's review. For the reasons outlined below, the undersigned recommends that Defendants' Motion for Summary Judgment be granted.
I. Procedural Background
Plaintiff filed his original complaint on October 13, 2017. ECF No. 1. On February 2, 2018, the undersigned filed a Report and Recommendation recommending that the District Court dismiss Plaintiff's due process claim related to the destruction of some of his property. ECF No. 34. On May 9, 2018, the District Court entered an order adopting the Report and Recommendation and dismissing that claim without prejudice. ECF No. 58. On April 27, 2018, Plaintiff moved to amend his complaint. ECF No. 54. On May 2, the undersigned granted Plaintiff's motion, finding Plaintiff's pleading expanded upon the complaint's original allegations, and docketed Plaintiff's filing as a "supplemental pleading" attached to the complaint. ECF No. 56. Defendants have now answered and moved for summary judgment on the complaint and supplemental pleading, and Defendants' motion has been fully briefed.
II. Factual Background
At all times relevant to the complaint, Plaintiff was incarcerated by the South Carolina Department of Corrections ("SCDC") at Kirkland Reception and Evaluation Center ("Kirkland"). Plaintiff was brought to Kirkland on August 14, 2017, via an interstate corrections compact with Virginia, and transferred to Broad River Correctional Institution on October 16, 2017. See Inmate Search Detail Report for Kelvin Canada, https://public.doc.state.sc.us/scdc-public/ (Last Accessed Dec. 10, 2018). Plaintiff alleges that, while incarcerated at Kirkland, he was denied recreation and given inadequate clothing, in violation of his Eighth Amendment right to be free from cruel and unusual punishment, and forced to listen to the pledge of allegiance over the loudspeaker multiple times a day, in violation of his First Amendment rights to freedom of religion and freedom of speech. ECF No. 1 at 9-37. Plaintiff has sued Defendants in both their individual and official capacities and seeks compensatory and punitive damages and for Defendants "to immediately extinguish all of these unconstitutional transgressions/practices." ECF No. 1 at 2-4, 7, 32-33.
Because Plaintiff is no longer incarcerated at Kirkland, his claims for injunctive relief have been rendered moot. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) (holding that, "as a general rule, a prisoner's transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there").
III. Standard of Review
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a Complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
IV. Analysis
a. PLRA Exhaustion
In enacting the Prison Litigation Reform Act of 1996 ("the PLRA"), Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended 42 U.S.C. § 1997e so that it now provides, "No action shall be brought with respect to prison conditions under § 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). In considering the effect of the PLRA, the United States Supreme Court held that "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001); see Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (prisoners must "properly exhaust" their administrative remedies before coming into court by using all steps available and doing it the way the agency's policy requires); Porter v. Nussle, 534 U.S. 516, 532 (2002) (exhaustion applies to all kinds of "inmate suits about prison life . . . .").
The PLRA "seeks to 'affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Woodford v. Ngo, 548 U.S. at 90. Thus, "it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). Several federal courts, including the United States Court of Appeals for the Fourth Circuit, have ruled that a prisoner is required to follow the rules established by the prison for its grievance process and to correct any problems with his or her compliance with the process before the prisoner can assert that the process is not available to him. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (inmate must attempt to cure problems with rejected grievance; compliance with procedures must be "exact and complete"); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)) ("'to exhaust administrative remedies, a person must follow the rules governing filing and prosecution of a claim,' including the prison's rules for filing an appeal"); Graham v. Gentry, 413 F. App'x 660, 663 (4th Cir. 2011) ("in order to show that a grievance procedure was not 'available,' a prisoner must adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure") (citation omitted). The lack of exhaustion of administrative remedies is generally considered an affirmative defense, and not a jurisdictional infirmity. Jones, 549 U.S. at 211-12.
According to SCDC regulations, an inmate has exhausted his administrative remedies when he has properly filed a Form 10-5 Step 1 grievance and a Form 10-5a Step 2 grievance. See South Carolina Dept. of Corrections, Inmate Grievance System, § 13, (May 12, 2014), http://www.doc.sc.gov/policy/GA-01-12.htm1529704825344.pdf (Last visited Dec. 10, 2018); Aff. of Sherman Anderson, ECF No. 63-3. Before filing a Step 1 grievance, an inmate must first attempt to resolve his issue through an Informal Resolution by submitting a Request to Staff Member Form ("RTSM") within eight working days of the incident. See id. The Step 1 grievance form requires an inmate to include a copy of the RTSM.
SCDC policy requires staff to instruct every inmate entering the SCDC on the grievance system both orally and in writing. See id. According to the grievance procedures, inmates are permitted to file five (5) grievances per month, including any grievance returned as unprocessed. See id. Once an inmate reaches the five grievance limit, additional grievances are returned as unprocessed. See id.
The record reveals that Plaintiff filed the following Step 1 grievances while incarcerated at Kirkland:
• KCI 0976-17: Filed on August 16, 2017, regarding access to outside recreation, returned as unprocessed for failure to include an RTSM;
• KCI 0980-17: Filed on August 18, 2017, regarding access to outside recreation and stating, "I spoke with Major Jones and Capt. Webber on: Aug 15, 2017 about this issue to no avail," returned as a duplicate of KCI 0976-17;
• KCI 0991-17: Filed on August 21, 2017, regarding not being given proper clothing, returned because Plaintiff had exceeded his five grievances for the month of August;
• KCI 0992-17: Filed on August 21, 2017, regarding the playing of the pledge of allegiance and noting "I don't understand the purpose of filing a 'RTSM' form when they are never answered, as in this case," returned because Plaintiff had exceeded his five grievances for the month of August;
• KCI 1036-17: Filed on August 29, 2017, regarding the lack of outdoor recreation and noting "I utilized the 'Informal Resolution' on this issue . . . but never received no response," returned because Plaintiff had exceeded his five grievances for the month of August;
• KCI 1037-17: Filed on August 29, 2017, regarding the playing of the pledge of allegiance, returned because Plaintiff had exceeded his five grievances for the month of August;
• KCI 1059-17: Filed on September 1, 2017, regarding not being given proper clothing and noting, "I've submitted 2 'RTSM' forms on this issue but as usual I never received any responses back," returned as a duplicate of KCI 0991-17;See ECF No. 63-4.
• KCI 1060-17: Filed on September 1, 2017, regarding the lack of outdoor recreation and noting, "I submitted 3 'RTSM' to Warden Davis, Asst. Warden Thompson, Unit Manager Chestnut about me being denied my 'outside recreation' and I never received any response back," returned as a duplicate of KCI 1036-17; and
• KCI 1081-17: Filed on September 1, 2017, regarding the playing of the pledge of allegiance, returned as a duplicate of KCI 1037-17.
This included KCI 0982-17 and KCI 0967-17, which are not relevant to Plaintiff's complaint. See ECF No. 63-4 at 4.
Defendants move for dismissal of Plaintiff's claims because of his failure to exhaust his administrative remedies. ECF No. 63-1 at 6-8. Attached to his response to the motion for summary judgment, Plaintiff provides two RTSMs he sent to the Inmate Grievance Coordinator on August 24, 2017, and August 28, 2017. See ECF No. 68-1 at 1-2. In those RTSMs, Plaintiff asserted he used the informal resolution process, but never received a response, so he should be allowed to file a Step 2 grievance. See id. In response, the Inmate Grievance Coordinator noted Plaintiff must wait to receive an answered RTSM before filing a Step 1 grievance and must submit the answered RTSM with his grievance. Id. at 1. Plaintiff has not provided this court with evidence that he complied with this policy or took any other action to cure the noted defects in his Step 1 grievances.
Per SCDC policy, unprocessed grievances, such as Plaintiff's, may be appealed by utilizing SCDC Form 19-11 (an RTSM), to the Branch Chief within ten days of the grievance being returned to the inmate. In addition, if the grievance was returned unprocessed because the inmate failed to provide necessary information, the inmate has five calendar days to re-file a proper Step 1 grievance. See Inmate Grievance System § 13.3, ECF No. 63-3 at 9.
Thus, because these grievances encompass all claims asserted in Plaintiff's complaint, the complaint is subject to dismissal for failure to exhaust administrative remedies.
b. Official Capacity Claims
Defendants move for summary judgment on all of Plaintiff's claims against them in their official capacities pursuant to the Eleventh Amendment. ECF No. 63-1 at 10-12. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The United States Supreme Court has long held that the Eleventh Amendment also precludes suits against a state by one of its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends not only to suits against a state per se, but also to suits against agents and instrumentalities of the state. Cash v. Granville Cnty. Bd. of Ed., 242 F.3d 219, 222 (4th Cir. 2001).
Because Defendants are employees of SCDC, a governmental agency of the State of South Carolina, and were employees of SCDC at all times relevant to the complaint, Defendants are arms of the state and not "persons" within the meaning of 42 U.S.C. § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either a state nor its officials acting in their official capacities are 'persons' under § 1983."). A state cannot, without its consent, be sued in a District Court of the United States by one of its own citizens upon a claim that the case is one that arises under the Constitution and laws of the United States. Edelman, 415 U.S. at 663. The State of South Carolina has not consented to be sued in this case. S.C. Code Ann. § 15-78-20(e). As arms of the State, Defendants, in their official capacities, are immune from suit under the Eleventh Amendment. Accordingly, the undersigned recommends dismissal of all of Plaintiff's claims against Defendants in their official capacities.
c. Merits
i. Eighth Amendment Claims
Plaintiff claims Defendants violated his Eighth Amendment right to freedom from cruel and unusual punishment by denying him recreation and failing to provide adequate clothing. He alleges that the lack of recreation exacerbated his previously diagnosed vitamin D deficiency and caused him stress, headaches, insomnia and anxiety. He further alleges that wearing only "shower shoes" twenty-four hours a day resulted in "wet feet" and "coldness." He seeks compensatory damages for each day he suffered these allegedly unconstitutional conditions. Defendants assert Plaintiff's Eighth Amendment claims fail because he has failed to show that he suffered a serious or significant injury as a result of his conditions of confinement.
Although both state and federal prisoners retain many constitutional rights, incarceration inherently limits these rights. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement, including ensuring adequate food, clothing, shelter, and medical care, and taking reasonable measures to guarantee the safety of inmates. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state an Eighth Amendment violation with respect to prison conditions, a prisoner must show: "(1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials." Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991). Further, "to withstand summary judgment on an Eighth Amendment challenge to prison conditions a plaintiff must produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions. . . . If a prisoner has not suffered serious or significant physical or mental injury as a result of the challenged condition, he simply has not been subjected to cruel and unusual punishment within the meaning of the Amendment." Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993).
Regarding recreation, Plaintiff claims the lack of recreation for the two months he was housed at Kirkland exacerbated his vitamin D deficiency and resulted in insomnia, stress, anxiety, and headaches. ECF No. 1 at 7, 14. However, Plaintiff has not provided evidence of any of these injuries beyond his conclusory allegations. Nor has Plaintiff alleged facts suggesting that any of his alleged injuries is "serious" or "significant."
Further, under the PLRA, "No Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered in custody without a prior showing of physical injury." 42 U.S.C. § 1997(e). Thus, because Plaintiff has failed to show he actually suffered either of his alleged physical injuries-exacerbation of vitamin D deficiency and headaches-his claims based on mental and emotional injuries-insomnia, stress, and anxiety-must be dismissed.
In addition, Plaintiff has only tenuously linked Defendants to this alleged constitutional violation. Although he asserts elsewhere that he never received responses to his submitted RTSM forms, here he alleges Defendants Davis, Thompson, and Jackson "stated verbally and via 'RTSM' Forms and Step # 1 Grievances that: 'R&E status does not receive recreation.'" ECF No. 1 at 12. He alleges Defendants Stirling and McCall were "both 'deliberate indifferent' to this un-constitutional practice of denying (R&E - prisoners) recreation - because Defendant Bryan Stirling is the SCDC - Director, and Michael McCall is the SCDC - Asst. Director." ECF No. 1 at 15. And he alleges Defendant Scarborough was "also 'deliberate indifferent' because she knew that - 'Kirkland Reception & Evaluation Center' was un-constitutionally denying 'R&E - prisoners' recreation - but agreed with 'Virginia' to 'Interstate Compact' me to 'South Carolina' under these un-constitutional conditions anyway." ECF No. 1 at 16.
Thus, Plaintiff has failed to allege that any of the named defendants was personally involved in depriving him of recreation. See Iqbal, 556 U.S. at 676 ("[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1997) (holding that an official must be personally involved in the alleged deprivation before liability may be imposed); Monnell v. Dep't of Soc. Servs., 436 U.S. 658, 691-94 (1978) (a claim based on the doctrine of respondeat superior does not give rise to a § 1983 claim).
Plaintiff's claim that he was denied adequate clothing fails on similar grounds. Plaintiff alleges that Kirkland only issued him "shower shoes" and that wearing only shower shoes for two months, even in "inclement weather, i.e. rain, snow, coldness, etc.," resulted in "wet feet" and "coldness." ECF No. 1 at 22, 24. First, the undersigned notes Plaintiff would not be exposed to any inclement weather if he was confined to his cell twenty-four hours a day, as he alleges in his denial of recreation claim. Second, Plaintiff's alleged injuries of "wet feet" and "coldness" are not sufficiently serious to justify relief. See Wilson v. Seiter, 501 U.S. 294, 298 (1991) ("The Constitution . . . does not mandate comfortable prisons, and only those deprivations denying the minimal civilized measures of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation."). And third, Plaintiff's conclusory allegation that Defendants "all have an 'affirmative - duty' to protect plaintiff from being subjected to 'cruel and unusual punishment'" is not sufficient to state a cause of action under § 1983 against them. See Iqbal, 556 U.S. at 676 ("[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Vinnedge, 550 F.2d at 928 (holding that an official must be personally involved in the alleged deprivation before liability may be imposed).
Plaintiff states his argument regarding the shower shoes "also applies to plaintiff being denied 'T-Shirts' as well to protect plaintiff from inclement weather i.e. rain, snow, and coldness." ECF No. 1 at 24. However, this is the extent of his allegations concerning a lack of t-shirts. Plaintiff has not alleged an injury connected to the lack of t-shirts or connected Defendants in any way to the alleged deprivation. Thus, Plaintiff has not provided sufficient facts to allege a plausible claim for relief under § 1983.
Thus, because Plaintiff has failed to show that he suffered a constitutionally significant injury as a result of the alleged lack of recreation or wearing shower shoes or that Defendants were personally involved in or deliberately indifferent to the allegedly unconstitutional conditions, the undersigned recommends granting summary judgment on Plaintiff's Eighth Amendment claims.
ii. First Amendment Claim
In addition to his Eighth Amendment claims, Plaintiff alleges Defendants violated his First Amendment rights to freedom of religion and freedom of speech by playing the Pledge of Allegiance over the prison loudspeaker two to three times a day. ECF No. 1 at 28. Plaintiff objects to both the inclusion of "under God" in the Pledge and declaring allegiance to a flag he feels represents values contrary to his own. See ECF No. 1 at 28-29. And he alleges Defendants are liable for permitting the Pledge to be played. ECF No. 1 at 31.
To the extent Plaintiff also argues this violated his Eighth Amendment rights because, "It is 'cruel and unusual punishment' to forcefully bombard and indoctrinate plaintiff with a religion and/or belief that's contrary to plaintiff's own religion and/or beliefs in a public venue that's inhibiting plaintiff from 'sleeping,'" this conditions of confinement claim also fails. See ECF No. 1 at 31. Plaintiff's alleged injury that the playing of the Pledge woke him up at 5:00 in the morning is not sufficiently serious to show a constitutional deprivation nor has Plaintiff alleged any personal involvement or deliberate indifference by Defendants.
Plaintiff's allegations suggest a claim under the First Amendment's Establishment Clause, which provides that the government "shall make no law respecting the establishment of religion." U.S. Const. Amend. I. "[T]o withstand an Establishment Clause challenge, (1) a [governmental act] must have a secular or legislative purpose; (2) its principal or primary effect must neither advance nor inhibit religion; and (3) it must not foster an excessive governmental entanglement with religion." Brown v. Gilmore, 258 F.3d 265, 275 (4th Cir. 2001) (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)).
Although courts do not appear to have addressed the playing of the Pledge of Allegiance in prisons, in the public school context, the Fourth Circuit has upheld a statute requiring students to recite the Pledge daily because the Pledge "is not a religious exercise or activity." Myers v. Loudon Cnty. Public Schools, 418 F.3d 395, 407 (4th Cir. 2005). Here, there is no evidence that Kirkland required Plaintiff to recite the Pledge, or even stop and acknowledge the playing of the Pledge. Thus, while Plaintiff is certainly entitled to his opinions about the Pledge and the American flag, he has failed to show that Defendants burdened his First Amendment rights.
Moreover, to the extent the playing of the Pledge of Allegiance over a prison loudspeaker may have violated Plaintiff's constitutional rights, Defendants are entitled to qualified immunity on this claim. See Parrish v. Cleveland, 372 F.3d 294, 301-03 (4th Cir. 2004) ("If the right was not clearly established in the specific context of the case-that is, if it was not clear to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the situation he confronted-then the law affords immunity from suit.") (citations and internal quotation marks omitted); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (government officials performing discretionary functions generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known).
For these reasons, the undersigned recommends granting summary judgment on Plaintiff's First Amendment claim.
V. Recommendation
Based on the foregoing, the undersigned recommends granting Defendants' Motion for Summary Judgment, ECF No. 63.
IT IS SO RECOMMENDED. December 17, 2018
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).