Opinion
C. A. 6:23-cv-01326-TMC-KFM
04-28-2023
Lloyd C. Kidd, Petitioner, v. Warden Williamsburg Federal Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD, UNITED STATES MAGISTRATE JUDGE
The petitioner, a federal prisoner in the custody of the Bureau of Prisons (“BOP”) and currently located at Williamsburg Federal Correctional Institution (“FCI Williamsburg”), proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons set forth below, it is recommended that the petitioner's § 2241 petition be dismissed.
PROCEDURAL HISTORY & ALLEGATIONS
On March 11,2021, the petitioner filed the instant matter in the United States District Court for the Eastern District of New York (doc. 1). In the petition, the petitioner asserted various alleged unconstitutional conditions of confinement while a pretrial detainee at MCC-Manhattan and MDC-Brooklyn (hereinafter, collectively, “the NYC Detention Centers”) (id.). On May 6, 2022, MDC-Brooklyn Warden Heriberto Tellez filed a memorandum of law opposing the petitioner's petition, arguing that the petition was moot based on the petitioner's transfer out of the NYC Detention Centers, the petitioner's sentence was imposed in contemplation of the conditions he alleged, and that the petitioner should not be able to bring civil rights claims in a habeas petition (doc. 12). On March 27, 2023, the Honorable William F. Kuntz, II, United States District Judge for the Eastern District of New York, entered an order transferring the petitioner's petition to the United States District Court for the District of South Carolina based on the petitioner's transfer to FCI Williamsburg (doc. 18). The instant matter was opened in this court on April 3, 2023 (doc. 19).
In his petition, the petitioner, who was a pretrial detainee at the time, asserts that his Sixth, Eighth, and Fourteenth Amendment Rights were violated due to unconstitutional conditions of confinement (doc. 1 at 2). The petitioner asserts that the conditions began on December 12, 2018, and continued through to the date of filing at the NYC Detention Centers (id.). The petitioner did not complete large portions of the court's standard petition form, leaving the grounds for relief and requested relief sections blank (id. at 6-8). Attached to the court's standard petition form are several documents that appear to contain the alleged unconstitutional conditions complained of by the petitioner (id. at 10-58). In the documents, the petitioner alleges that his access to a law library while at the NYC Detention Centers limited his ability to mount a defense to his pending criminal charges (id. at 11). The petitioner also contends that his equal protection rights were violated because he could only contact his attorney through a telephone (id.). The petitioner also asserts that he was threatened by Tova Noel (“Ofc. Noel”) and Ofc. Richardson at MCC-Manhattan (id.). He further contends that information was spread in MCC-Manhattan that he was a child molester (even though that was not his charge), which resulted in him being attacked by several gang members (id.). He contends that he was not provided medical care after the attack, and that it took months for x-rays to be completed (id.). The petitioner then asked Lt. Doctor for permission to see a psychiatrist because he was scared, but Lt. Doctor did not immediately grant his request (id.). Due to this, the petitioner tried to hang himself (id.). The petitioner contends that in February 2019, he was walked through a hallway after mace was utilized on another detainee before the mace had cleared, leading to the petitioner to cough until he became ill (id.). A doctor came to see the petitioner and just recommended that the petitioner drink water (id.). The petitioner also contends that Ofc. Mobley behaved inappropriately during strip searches by making him show his bottom (id. at 13). The petitioner further contends that when he was transferred to MDC-Brooklyn, Ofc. Mobley destroyed his personal property (id.).
In October 2019, the petitioner asserts he was injured in a prison van after it was driven negligently and he was forced to sit in a loose seat (id.). The petitioner was provided physical therapy after the incident (id.). The petitioner further contends that due to COVID-19, he was confined to his cell for most of the day with no social or legal visits (id.). The petitioner further contends that he caught COVID-19 in December 2020, based on inadequate testing and mask enforcement by the BOP (id.). The petitioner contends that he experienced flu-like symptoms and weakness when he caught COVID-19 (id.). The petitioner further contends that he was only rewarded $50.00 for reporting that a nurse was having a seizure, which is unfair (id. at 14). The remaining documents submitted by the petitioner are copies of requests to BOP officials as part of the administrative remedies process, copies of treatment records, press releases, and statements by other inmates about mistreatment they received at the NYC Detention Centers (id. at 15-56).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, 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, 391 (4th Cir. 1990).
DISCUSSION
The petitioner filed this action pursuant to 28 U.S.C. § 2241 (doc. 1). As set forth in more detail below, the petition should be dismissed.
Section 2241 Claim
Here, as outlined above, the petitioner seeks relief for alleged unconstitutional conditions of confinement he endured while a pretrial detainee at the NYC Detention Centers (see generally doc. 1). Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus and civil rights complaints. Hill v. McDonough, 547 U.S. 573, 579 (2006). In Preiser v. Rodriguez, the United States Supreme Court recognized that “the essence of habeas corpus” in both federal statute and common law “is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.” 411 U.S 475, 484 (1973). However, the Supreme Court did not specifically decide whether a prisoner could bring a habeas claim for alleged unconstitutional conditions of confinement. Id. at 499-500.
As recognized by the Fourth Circuit Court of Appeals, since Preiser, a circuit split has developed, with seven of the ten circuits finding (in published opinions) that claims challenging conditions of confinement cannot be brought in a habeas petition. See Wilborn v. Mansukhani, 795 Fed.Appx. 157, 163-64 (4th Cir. 2019) (unpublished per curiam opinion) (collecting cases noting that while the First and Second Circuits recognize conditions of confinement claims under § 2241, the Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits do not recognize conditions of confinement claims under § 2241). Although the Fourth Circuit has not issued a published decision on the matter, several unpublished Fourth Circuit decisions have held that conditions of confinement claims are not cognizable in habeas proceedings. Id. (collecting unpublished cases holding that conditions of confinement claims are not cognizable in habeas proceedings). Accordingly, the petitioner may not seek relief relating to his alleged unconstitutional conditions of confinement in this action because this circuit does not recognize conditions of confinement claims under § 2241.
Further, although the petitioner left blank what relief he requested on his petition, because money damages are not available in a § 2241 proceeding, the petitioner's habeas petition appears to be moot based upon his transfer to FCI Williamsburg, as he is no longer incarcerated at the NYC Detention Centers where the complained-of conditions took place (doc. 18 at 5). See Preiser, 411 U.S. at 499-500. As such, even presuming the petitioner could bring conditions of confinement claims under § 2241 in this circuit, his petition would be mooted by his transfer to FCI Williamsburg.
Bivens Claims
Despite the foregoing, out of an abundance of caution for the pro se petitioner, the undersigned will also evaluate the petitioner's claims as civil rights claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999). In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violations of federal constitutional rights. Bivens, 403 U.S. at 388. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825, 839 (1994); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). To state a claim under Bivens, a petitioner must plausibly allege two elements: (1) the defendant deprived the petitioner of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. See Mentavlos v. Anderson, 249 F.3d 301,310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 (“In [a previous case], we reserved the question whether violation of [the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.”). As an initial matter, the undersigned will address the petitioner's civil rights claims as if pursued against the appropriate defendants mentioned in his petition for purposes of this report and recommendation - even though the petitioner has not alleged that the respondent was involved with any of the actions leading to the alleged unconstitutional conditions. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that liability under § 1983 “requires personal involvement”).
As noted, in Bivens, the Supreme Court recognized an implied private action for damages against FBI agents alleged to have violated a petitioner's Fourth Amendment rights from unreasonable search and seizure when the agents handcuffed the petitioner in his own home without a warrant. Bivens, 403 U.S. at 389. Since then, the Supreme Court has only recognized Bivens claims in two additional contexts: (1) under the Fifth Amendment's Due Process Clause for gender discrimination when a Congressman fired his female administrative assistant (Davis v. Passman, 442 U.S. 228 (1979)); and (2) under the Eighth Amendment's Cruel and Unusual Punishment Clause against prison officials for failing to treat an inmate's asthma (Carlson v. Green, 446 U.S. 14 (1980)). However, as recognized by the United States Supreme Court in Egbert v. Boule, during the last 42 years, the court has “declined 11 times to imply a similar cause of action for other alleged constitutional violations.” 142 S.Ct. 1793, 1799-1800 (2022) (collecting cases). The Court in Egbert further noted that recognizing additional causes of action under Bivens is disfavored. Id. at 1803 (internal citation omitted). As recognized recently by the Fourth Circuit in a published opinion, although the Supreme Court has not overruled any of the Bivens cases, the Supreme Court has demonstrated not only regret over the Bivens cases, but also demonstrated hostility to any expansion of them. See Tate v. Harmon, 54 F.4th 839, 843-44 (4th Cir. 2022). Thus, the Supreme Court has imposed a highly restrictive analysis for Bivens cases by “(1) narrowing the precedential scope of Bivens, Davis, and Carlson and (2) imposing a broad standard of criteria that, if satisfied, require courts to reject any expansion of Bivens remedies.” Id. Under Ziglar v. Abbasi, the Supreme Court framed the inquiry as a two step process: (1) first asking whether the case presents a new Bivens context and (2) if the claim arises in a new context, doing a special factors analysis to determine whether to extend Bivens to said context. Ziglar v. Abbasi, 582 U.S. 120, 135-38 (2017) (citation omitted). In Egbert, the Supreme Court decided that “[w]hile our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1803.
Here, the only claims asserted by the petitioner that are not a new Bivens context are his medical indifference claims - which are addressed in more detail, infra. The petitioner's remaining claims are new Bivens contexts and extending Bivens to them has been previously rejected; thus, the following Bivens claims pursued by the petitioner are subject to summary dismissal: (1) conditions of confinement claims under the Eighth Amendment; (2) a Fourteenth Amendment equal protection claim; (3) a negligence claim for injuries received in the prison van; (4) a claim that the petitioner's personal property was destroyed; (5) a claim that the petitioner was denied access to a law library; (6) a claim that the petitioner was threatened by Ofc. Noel and Ofc. Richardson; (7) and a claim that the petitioner was sexually assaulted when subjected to unconstitutional strip searches. See Tate, 54 F.4th at 845-48 (noting that “the Supreme Court's warning that courts should not be in the business of creating causes of action and that they must give the legislative branch ‘utmost deference' in considering whether to do so” meant that Bivens claims should not be extended to conditions of confinement claims); Ball v. Streeval, C/A No. 7:20-cv-00558, ___ F.Supp.3d ___, 2023 WL 1930003, at *6 (W.D. Va. Feb. 9, 2023) (collecting cases recognizing that claims of excessive force, harassment and threats by officers, sexual harassment, and sexual assault all presented new Bivens contexts to which Bivens should not be extended (internal citations omitted)); Curry v. Olberding, C/A No. 1:21-cv-1300-HMH-SVH, 2022 WL 791925, at *7 (D.S.C. Feb. 3, 2022) (noting that Fifth Amendment due process and equal protection claims are new contexts to which Bivens should not be extended), Report and Recommendation adopted by 2022 WL 788874 (D.S.C. Mar. 15, 2022); Bailey v. Rife, C/A No. 1:21-cv-00424, 2021 WL 6496561, at *12-14 (S.D. W.Va. Nov. 19, 2021) (noting that law library access claim was a new Bivens context and special factors counseled against expanding Bivens to this context), Report and Recommendation adopted by 2022 WL 130746 (S.D. W.Va. Jan. 13, 2022). However, as noted, the petitioner's medical indifference claims are a context to which Bivens has been extended. Nevertheless, as set forth in more detail below, these claims still fail to provide a basis for relief for the petitioner.
Deliberate Indifference to Medical Needs Claims
As noted, the petitioner's deliberate indifference to medical needs claims, based upon the Eighth Amendment, are contexts in which Bivens has been expanded to apply. See Carlson, 446 U.S. 14. Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the [Constitution].” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The government is required to provide medical care for incarcerated individuals. Id. at 103. However, to establish deliberate indifference, the treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837.
In order to state a claim, a petitioner must show a serious medical need as well as that the prison official “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)). A “serious medical need” is a condition “diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Heyer, 849 F.3d at 210 (citation omitted). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier, 896 F.2d at 851-52 (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the petitioner has failed to state a claim for deliberate indifference to medical needs. The petitioner's medical indifference claims include that he was not provided medical care after he was attacked (doc. 1 at 12), that his request for mental health treatment was not immediately granted (id.), that he was exposed to mace in a hallway that was used on another detainee (id.), that he was not provided medical care after being injured in the prison van from negligent driving (id. at 13), and that he was exposed to the COVID-19 virus (id.). The court will address each alleged incident in turn.
The petitioner's first medical indifference claim is that he was not provided medical care after being attacked on January 17, 2019, and that it took until April of that year to have x-rays completed (id. at 12). First, even liberally construing the petitioner's petition, the petitioner has not made any personal allegations of wrongdoing with respect to this claim. Indeed, the petitioner has not alleged that he requested medical care after the attack, or that any BOP employee denied his request for medical care. It is also unclear if the petitioner's injuries met the standard of “serious medical needs”. Moreover, “an inadvertent failure to provide adequate medical care” does not allege a deliberate indifference claim. Estelle 429 U.S. at 105-06. Additionally, further undermining the petitioner's claim, attached to the petitioner's petition are copies of medical treatment records for the petitioner, including records indicating that the petitioner was provided medical care on January 19, 2019, and his only complaint during that treatment visit was that his elbow hurt (see doc. 1 at 19-22). Likewise, the petitioner also provided treatment records showing that he received additional care on January 24, 2019 (id. at 24-25). X-rays were not completed until March and April, 2019; however, the petitioner has failed to allege that the delayed x-rays impeded or affected his medical treatment. Indeed, as noted, the petitioner's documentation makes clear that he was provided treatment by medical professionals for his injuries - he just disagrees with the course of treatment offered by the medical professionals (see doc. 1 at 12, 19-22, 24-25). However, the petitioner is not constitutionally entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975))). Moreover, even presuming the petitioner should have been provided x-rays sooner, his claim amounts to, at best, negligence - which is not actionable under Bivens. See Estelle, 429 U.S. at 106 (noting that mere negligence or malpractice does not violate the Eighth Amendment). As such, the petitioner's medical indifference claim regarding treatment after he was attacked fails to state a claim for relief under Bivens.
The petitioner's second medical indifference claim is that he was scared so he asked Lt. Doctor permission to speak to a mental health provider immediately, and Lt. Doctor indicated that the petitioner could not be seen right away, which caused the petitioner to try and hang himself (doc. 1 at 12). Although delay of medical treatment can constitute deliberate indifference to medical needs, Estelle, 429 U.S. at 104-05, the petitioner has not alleged the existence of circumstances suggesting that he had a serious medical need that Lt. Doctor should have recognized so as to put Lt. Doctor on notice that the petitioner required immediate mental health treatment or placement on crisis management. Indeed, even if assuming that Lt. Doctor was negligent in not immediately placing the petitioner on crisis management or summoning a mental health provider to assess the petitioner, negligence is not actionable under Bivens. See Estelle, 429 U.S. at 106 (noting that mere negligence or malpractice does not violate the Eighth Amendment). For example, although the petitioner did not see a mental health provider as soon as he believed appropriate, there are no allegations that Lt. Doctor's actions in not providing immediate mental health treatment were “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier, 896 F.2d at 851; see Wright, 766 F.2d at 849 (disagreements between an inmate and physician over the inmate's proper medical care do not state a § 1983 absent allegations of exceptional circumstances). Further, upon presentment to medical after the incident in question, the petitioner is noted as cooperative, alert and oriented, and the petitioner is noted as being “relaxed, in not apparent pain or distress” although the petitioner was then placed on suicide watch based on his allegations to the medical provider of depression (doc. 1 at 24-25). As such, the petitioner's medical indifference claim that he was not immediately provided mental health treatment when requested fails to state a claim for relief under Bivens.
The petitioner's third medical indifference claim, liberally construed, is that he was not provided proper medical care after being exposed to mace that was used on another inmate (doc. 1 at 12). First, even liberally construing the petitioner's petition, the petitioner has not made any personal allegations of wrongdoing with respect to this claim. Indeed, the petitioner has not alleged that his injury of being exposed to mace that was left in the hallway after it was dispersed on another inmate was a serious medical need. Further, the petitioner concedes that he was checked by a doctor after he became sick during his administrative hearing and the doctor provided treatment - even though the petitioner disagrees with the course of treatment provided by the doctor (doc. 1 at 12). However, as noted above, the petitioner is not constitutionally entitled to the treatment of his choice. See Sharpe, 621 Fed.Appx. at 733. As such, the petitioner's medical indifference claim regarding treatment after he was exposed to mace fails to state a claim for relief under Bivens.
The petitioner's fourth medical indifference claim is that he was not provided medical care after being injured on the prison van in October 2019 (doc. 1 at 13). First, even liberally construing the petitioner's petition, the petitioner has not made any personal allegations of wrongdoing with respect to this claim. Indeed, the petitioner has not alleged that his injuries met the standard of “serious medical needs”, that he requested medical care after being in the prison van, or that any BOP employee denied his request for medical care. As noted, “an inadvertent failure to provide adequate medical care” does not allege a deliberate indifference claim. Estelle 429 U.S. at 105-06. Additionally, further undermining the petitioner's claim, attached to the petitioner's petition are copies of medical treatment records for the petitioner, including records indicating that the petitioner was provided medical care on October 12, 2019, and he was noted as ambulating with a normal gait, moving all extremities freely, and his only complaint was that, after being injured on the prison van, right knee pain limited his ability to do burpees (doc. 1 at 41-42). The petitioner was provided Naproxen as part of that treatment visit - and reported no pain when he presented for treatment four days later on October 16, 2019 (doc. 1 at 39-42). The petitioner's documentation makes clear that he was provided treatment by medical professionals for his injuries - it just appears that he disagrees with the course of treatment offered by the medical professionals. See Sharpe, 621 Fed.Appx. at 733. As such, the petitioner's medical indifference claim regarding treatment after he was injured in the prison van fails to state a claim for relief under Bivens.
The petitioner's last medical indifference claim involves his allegations that he was exposed to COVID-19 and became ill (doc. 1 at 13). First, the petitioner has not made any personal allegations of wrongdoing with respect to this claim - only general allegations that the BOP did not do a good job of testing employees or inmates or enforcing proper mask wearing (id.). See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1997) (“Having failed to allege any personal connection between [the defendants] and any denial of [the petitioner's] constitutional rights, the action against him must fail.”). Additionally, although the petitioner alleges that he experienced flu-like symptoms when he had COVID-19, he has not alleged that he suffered serious symptoms that required medical care. As such, the petitioner's medical indifference claim regarding exposure to COVID-19 also fails to state a claim for relief under Bivens.
RECOMMENDATION
The undersigned is of the opinion that the petitioner cannot cure the defects identified above by amending his petition. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”).
The petitioner's attention is directed to the important notice on the next page.
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:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).