Opinion
Civil Action No. 9:05-2070-DCN-GCK.
April 11, 2006
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
The Plaintiff Jonathan Craft ("Plaintiff" or "Craft") is a state prisoner who was incarcerated in Kershaw Correctional Institution ("KCI") at the time of the alleged incident giving rise to this action. Proceeding pro se, he seeks relief from the above-captioned defendants, Mrs. Doris Cooke, Nurse Coles, Mrs. Hardin, A. Forester, Nurse Diane Durham, and Kershaw (CI) ("KCI") Medical Staff (collectively, the "Defendants").
Plaintiff currently is confined in the Lee River Correction Institution.
Plaintiff's Complaint alleges that the Defendants refused to provide him with proper medical attention, constituting cruel and unusual punishment. Plaintiff also alleges assault and battery. Plaintiff seeks monetary damages and a transfer from KCI. [1-1]
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned United States Magistrate Judge is authorized to review all pretrial matters in prisoner cases filed under 42 U.S.C. § 1983, and submit findings and recommendations to the District Court.
II. PRO SE COMPLAINT
Plaintiff is a pro se litigant, and thus his pleadings are accorded liberal construction. Hughes v. Rowe, 449 U.S. 5, 9 (1980) ( per curiam); Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519 (1972); Loe v. Armistead, 582 F. 2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, Leeke v. Gordon, 439 U.S. 970 (1978). Under established local procedure in this judicial district, a careful review has been made of the pro se Petition herein pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 104, 110 Stat. 1214, codified at 28 U.S.C. § 2254. This review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) ( en banc), cert. denied, 516 U.S. 1177 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hughes, 449 U.S. 5 (1980). Even under this less stringent standard, however, the pro se complaint nonetheless may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented. Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). Likewise, a court may not construct the plaintiff's legal arguments for him ( Small v. Endicott, 998 F.2d 411 (7th Cir. 1993)) or "conjure up questions never squarely presented" to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986). The requirement of liberal construction, however, does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).
III. PROCEDURAL HISTORY
Plaintiff filed his initial action on July 14, 2005. On July 25, 2005, the Court ordered that the case be brought into proper form. [3-1] The Plaintiff then filed his Amended complaint on August 10, 2005, adding the Defendants A. Forester and Nurse Diane Durham. [5-1] The Defendants answered with a general denial, reserving defenses as to insufficiency of process or service of process against the individual Defendants, and further alleged, among others, the defenses of failure to state a claim upon which relief can be granted, qualified immunity under the Eleventh Amendment, and that any injuries Plaintiff received were de minimis. [11-1]
Plaintiff has the benefit of the holding of Houston v. Lack, 487 U.S. 266 (1988) with respect to the "delivery" date of his initial filing with the court, which was a KCI Step One grievance complaining of the actions of KCI Medical Staff, Mrs. Harding, Mrs. Cooke, and Nurse Coles. [3-1] The undersigned issued a twenty-day "proper form" Order; Plaintiff complied with the Order, and service of process was authorized. [7-1].
Defendants failed to allege that Plaintiff failed to exhaust his administrative remedies prior to filing suit. See Anderson v. XYZ Correctional Health Services, 407 F.3d 674 (4th Cir. 2005).
The Defendants Forester and Cooke were served, but the summonses were returned unexecuted with respect to Diane Durham, (who no longer worked at SCDC), and Defendants Hardin and Coles, who could not be identified. [13-1; 14-1]
Thereafter, on December 1, 2005, the Defendants filed a Motion to Dismiss or in the Alternative, for Summary Judgment, and a Memorandum in support thereof, contending that they were entitled to summary judgment as a matter of law on the following grounds: (1) Plaintiff failed to state a claim upon which relief can be granted and (2) Plaintiff failed to allege any facts which would entitle him to judgment against Defendants. [20-1; 20-2]
The undersigned issued an Order, filed on December 7, 2005, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), notifying Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to the Motion for Summary Judgment within thirty-four (34) days. [23-1] Thereafter, on December 15, 2005, the Plaintiff filed a response to the Motion to Dismiss. [24-1]
Plaintiff also filed several motions to amend his complaint, all of which were denied by the undersigned.
On January 5, 2006, Plaintiff filed a motion to compel the Defendant to produce relevant medical records. [26-1] This motion was denied on January 6, 2006. [27-1] On January 27, 2006, the Court issued an Order for counsel for the Defendants to file a supplemental brief in response to Plaintiff's complaint, to include a discussion as to whether Plaintiff had exhausted his available administrative remedies prior to filing suit. [33-1] The Supplemental Brief was filed on February 16, 2006. [36-1] Accordingly, the case is now ripe for disposition by the undersigned United States Magistrate Judge.
IV. FACTUAL BACKGROUND
Plaintiff alleges that he was sprayed with pepper spray without provocation on two separate occasions. Plaintiff also alleges he was denied blood pressure medication and treatment. Plaintiff claims he suffered cruel and unusual treatment as a result of these incidents.
A. Use of Pepper Spray
Specifically, Plaintiff claims that on March 4, 2004, he visited the KCI doctor for sinus and blood pressure problems. Plaintiff alleges that as he left the office, Nurse Diane Durham maced him in the face for no apparent reason.
In addition, Plaintiff claims that on January 13, 2005, while stationed in the "salley port," one of the Defendants, Officer Anita Forester, maced him for no apparent reason while he was in the salley port.
B. Denial of Medical Care
Plaintiff has also alleged that in July 2005, Nurses Hardin, Cooke, and Coles were indifferent to his requests for treatment of his blood pressure. Specifically, Plaintiff claims he was denied access to blood pressure medicine and treatment by a doctor.
V. THE PROPER DEFENDANTS TO THIS ACTION
Although Plaintiff named five individuals in this action, service could not be accomplished upon the Defendants Durham, Hardin, and Coles, despite the fact that the court twice ordered that the United States Marshal Service serve those Defendants.
In September 2005, the United States Marshals Service returned forms indicating the South Carolina Department of Corrections ("SCDC") would not accept service for Defendants Durham, Hardin, and Coles. Hand-written notes on two of the forms indicated that the SCDC could not identify Defendants Hardin and Coles. The form returned for Defendant Durham indicated that she no longer worked with the SCDC.
On October 3, 2005, this Court ordered the Marshals to serve the Summons and Complaint upon the aforementioned Defendants within thirty (30) days of the date of the Order. However, on November 2, 2005, the Marshals once again returned unexecuted service with respect to these three Defendants.
Rule 4(m) states in pertinent part:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Further, Local Rule 4.01, D.S.C. provides:
Timely Service of Summons and Complaint. In the event a pleading asserting a claim is not served on each party against whom a claim is asserted within one hundred twenty (120) days after filing of the pleading, the party asserting a claim shall advise in writing the Court and all parties previously served at the expiration of said one hundred twenty-day (120) period of the identity of the party not served and why service has not been effected.
The Defendants Durham, Hardin, and Coles are not able to be served by the Marshals' Service, and thus it is recommended that they be dismissed from this action pursuant to Rules 12(b)(4) and (5), F.R.C.P. Thus, the undersigned also recommends that Plaintiff's claim against Nurse Diane Durham, which alleged that she sprayed mace in his face for no apparent reason as he was leaving the medical area on March 4, 2004 also be dismissed.
Next, the court will turn its attention to those Defendants who have been served, to wit, Mrs. Cooke, Officer Forester, and the KAI Medical Staff (collectively, the "Served Defendants").
VI. THE STANDARDS FOR DECIDING A MOTION TO DISMISS, OR FOR SUMMARY JUDGMENT
When resolving a motion to dismiss, a court "presumes all factual allegations in the complaint to be true and accords all reasonable inferences to the non-moving party." Sumner v. Tucker, 9 F.Supp.2d 641, 642 (E.D. Va. 1998), citing 2A Moore's Federal Practice ¶ 12.07[2.5] (2d ed. 1994); see also Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). As the Plaintiff in this case is pro se, and his pleadings are entitled to liberal construction, the complaint will survive a Rule 12(b)(6) motion unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ( per curiam) (internal quotation omitted); see also Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (holding that a Rule 12(b)(6) motion should be denied unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations").
In the present case, because the Motion to Dismiss is styled, in the alternative, as one for summary judgment, and has an affidavits attached thereto, the court will consider the Served Defendants' Motion as one for summary judgment. See Pueschel v. United States, 369 F.3d 345, 353 n. 3 (4th Cir. 2004). As the Supreme Court held in Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986):
In Pueschel, the panel stated: "We note that Rule 12(b)(6) does not mandate that a district court treat a motion to dismiss as a motion for summary judgment simply because the moving party includes exhibits with its motion. Rule 12(b)(6) only requires that a motion to dismiss be treated as a motion for summary judgment when the motion to dismiss or exhibits present matters outside the nonmoving party's pleadings and the district court does not exclude such matters. Fed.R.Civ.P. 12(b)(6) (stating that [i]f, on a motion . . . to dismiss . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ."); Harrison v. U.S. Postal Serv., 840 F.2d 1149, 1152 n. 7 (4th Cir. 1988) (noting that district court's reliance on exhibits to motion to dismiss did not convert the motion into one for summary judgment because "the facts to which the court so referred were either alleged in the amended complaint or contained in the exhibits thereto"); Wilson-Cook Medical, Inc. v. Wilson, 942 F.2d 247, 252 (4th Cir. 1991) (holding that inclusion of supporting memoranda and affidavits did not convert motion to dismiss into motion for summary judgment because the district court did not consider such material).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation there can be no "genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
It is important to add that unsupported speculation by a non-moving party is insufficient to defeat a summary judgment motion. Felty v. Graves-Humphreys Co., 818 F. 2d 1126 (4th Cir. 1987). Similarly, genuine disputes of material facts are not demonstrated by the bald statements of a non-moving party in affidavits or depositions. Stone v. University of Md. Medical Sys. Corp., 855 F. 2d 167 (4th Cir. 1988).
VII. ANALYSIS A. Introduction
As a pro se litigant, Plaintiff's Complaint must be construed liberally by this court. Nevertheless, a careful review of all of the pleadings in this case has led this court to recommend, for the reasons set forth below, that this matter be dismissed.B. Plaintiff Failed to Exhaust His Administrative Remedies
As a threshold reason for recommending dismissal of this action, the Plaintiff has failed to exhaust his administrative remedies. The Prison Litigation Reform Act of 1996 (the " PLRA"), codified as amended at 42 U.S.C. § 1997e(a), provides in relevant part, that "[n]o action shall be brought with respect to prison conditions under section 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); see also Porter v. Nussle, 534 U.S. 516, 524 (2002) ("Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory."). Thus, the PLRA requires prisoners bringing actions concerning prison conditions or other federal law to exhaust all available administrative remedies before suing in federal court. See Porter v. Nussle, 534 U.S. at 532; Booth v. Churner, 532 U.S. 731, 741 (2001). Justice Ginsberg, writing for a unanimous Court in Porter, explained the impact of the amendments to the PRLA as follows:
All available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be plain, speedy, and effective. Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. And unlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all actions brought with respect to prison conditions, whether under § 1983 or any other federal law.
Porter v. Nussle, 534 U.S. at 524 (internal quotations and citations omitted).
In Porter, the Supreme Court emphasized that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." 534 U.S. at 532. Furthermore, Porter makes clear that the provisions in 42 U.S.C. § 1997e(a) applies to state prisoners. Porter, 534 U.S. at 524. Plaintiff's action is one that encompasses "prison life," and therefore his case falls within the rule, articulated in Porter, that an inmate's exhaustion of administrative remedies is a prerequisite to filing suit.
A plaintiff's failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) is an affirmative defense that must be raised and pled by the defendant. Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 681 (4th Cir. 2005). In the present case, the Served Defendants have argued in their Brief that Plaintiff failed to exhaust his administrative remedies within the SCDC prior to filing suit. This court's review of the file indicates that Plaintiff initially mailed one grievance form and one "Request to Staff Member" form to the Clerk of Court, apparently in an attempt to commence suit. The Step One grievance form relates to his concerns about his blood pressure medicine but it does not appear to have been submitted to KAI authorities, as it appears to be the original document, and it appears that KAI's Internal Grievance Committee did not have an opportunity to act upon it. In contrast, the Request to Staff Member form has written upon it the response from a staff member. Of course, the latter form is not a grievance form.
See Served Defendants' Motion to Dismiss [38-1] at pp. 8-14.
Plaintiff attached a Step One grievance form to a pleading he filed in December 2005. [25-1] This Grievance form addresses the pepper spray incident with Officer Forester, a Served Defendant, who allegedly used pepper spray against him without provocation when he was in the salley port. The grievance was returned to Plaintiff as unprocessed because he had failed to informally resolve the issue with the appropriate staff prior to filing the grievance, in accordance with SCDC procedure. Plaintiff was given instructions for the procedure remained to pursuing a grievance, but there is no documentary evidence that he did so, and the Served Defendants deny he exhausted his administrative remedies prior to filing suit. Accordingly, Plaintiff's action should be dismissed because he failed to exhaust his administrative remedies prior to filing suit.
C. Plaintiff's Eighth Amendment Claims
Even if Plaintiff's claims could be addressed on the merits, they nonetheless would fail. Construed liberally, Plaintiff claims that his rights under the Eighth Amendment were violated by Served Defendants' actions.
1. The Pepper Spray Incident in the Salley Port
First, with respect to the pepper spray incident and Defendant Forester, even assuming, arguendo, that Plaintiff received injuries from the pepper spray, these injuries were de minimis. The Supreme Court has held that the Eighth Amendment "serves as the primary source of substantive protection of convicted prisoners in cases . . . where the deliberate use of force is challenged as excessive and unjustified. Whitley v. Albers, 475 U.S. 312, 327 (1986). Plaintiff's Eighth Amendment claim is based upon the allegation that Defendant Forester's use of chemical munitions in the salley port constituted cruel and unusual punishment. The Eighth Amendment expressly prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. "It not only outlaws excessive sentences but also protects inmates from inhumane treatment and conditions while imprisoned." Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996); see Wilson v. Seiter, 501 U.S. 294, 298 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976).
To succeed on any Eighth Amendment claim for cruel and unusual punishment, a prisoner must prove: (1) objectively, the deprivation of a basic human need was sufficiently serious, and (2) subjectively, the prison officials acted with a "sufficiently culpable state of mind." Wilson, 501 U.S. at 298; Williams, 77 F.3d at 761. The objective element of an excessive force claim requires more than a de minimis use of force. The Supreme Court has proscribed recovery based on de minimis force, unless that use of force is "repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal quotation marks omitted). De minimis injury is evidence of de minimis force. Norman v. Taylor, 25 F.3d 1259, 1262-63 (4th Cir. 1994). The Fourth Circuit Court of Appeals, sitting en banc, has recognized a bright-line rule in the Supreme Court's jurisprudence that a de minimis injury will defeat a plaintiffs excessive force claim "absent the most extraordinary circumstances," i.e., unless the force used was "repugnant to the conscience of mankind." Norman v. Taylor, 25 F.3d at 1263.
As the Fourth Circuit has held, the United States Constitution does permit small quantities of pepper spray, or mace, to be used to control recalcitrant inmates. Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996). In this record there is no evidence, medical or otherwise, that the Plaintiff suffered any injury whatsoever, much less a de minimis injury, from the chemical munitions administered by Defendant Forester. Indeed, Plaintiff, in his Step One Grievance form [attached to 25-1] does not claim any injury at all. Instead, Plaintiff complains that Defendant Forester is "not authorize[d]" to use force against him "for talking". According to Defendant Forester, however, while Plaintiff was in the salley port with her, he used obscene language and made sexual advances towards her. Defendant Forester issued three verbal warnings to Plaintiff before she used pepper spray to protect her own safety and the safety of others.
See Forester Affidavit, attached as Exhibit A to Defendants' Memorandum. [36-1].
Likewise, it does not appear that the type of force used in this case is "repugnant to the conscience of mankind." As the Fourth Circuit explained, "[a] limited application of mace may be much more humane and effective than a flesh to flesh confrontation with an inmate." Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (footnote omitted), ( citing Soto v. Dickey, 744 F.2d 1260, 1262 (7th Cir. 1984), cert. denied, 470 U.S. 1085 (1985)). In Soto, the Seventh Circuit held the use of mace, tear gas, or other similar chemical agents, does not constitute cruel and unusual punishment when reasonably necessary to subdue a "recalcitrant prisoner," even where the prisoner is locked in his cell or in handcuffs. Soto, 744 F.2d at 1270. Applying that standard to the facts of this case, Defendant Forester was presented with an inmate who directed obscene comments and made sexual advances toward her in the small, enclosed salley port. Plaintiff was told three times to cease his behavior, but refused the Defendant's directives. Under the circumstances, this Court believes that Defendant Forester used "reasonable" force when discharging her chemical munition in order to stop his advances. The use of these chemical munitions in order to subdue Plaintiff cannot be said to have resulted in anything more than a de minimis injury. Williams v. Benjamin, 77 F.3d at 762. Significantly, this Court notes that following this incident, Plaintiff received appropriate medical attention.
See Forester Affidavit attached as Exhbiit A to Defendants' Memorandum. [36-1].
Based upon the facts of this case, there is no evidence of excessive or unnecessary force that could support a claim for a violation of Plaintiff's rights.
2. Plaintiff's Medical Needs
Plaintiff also has failed to demonstrate that any of the Served Defendants, including Nurse Cooke, were deliberately indifferent to his medical needs at any time. Plaintiff admits that he visited the doctor in August 2005 for chest pain. Plaintiff also admits that he saw the doctor again on October 20, 2005, to learn of his test results, and later, several nurses helped Plaintiff make an appointment to re-visit the doctor. Plaintiff alleges that on November 10, 2005, he was denied access to the doctor because of a backlog of patients. However, Plaintiff does not allege that he suffered any injury as a result of this delay. "[A]n inadvertent failure to provide adequate medical care cannot be said to constitute 'an unnecessary and wanton infliction of pain[.]" Estelle v. Gamble, 429 U.S. 97, 105 (1976). Neither negligence nor malpractice constitutes willful or wanton indifference to a prisoner. Id. at 106. As the Court of Appeals for the Fourth Circuit observed in Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990), the treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness (citations omitted) . . . nevertheless, mere negligence or malpractice does not violate the Eighth Amendment." Id. at 851.
See Plaintiff's Statement of Claim filed Nov. 16, 2005. [18-1]
Id.
Id.
Thus, unless Plaintiff's medical needs were serious or life threatening and the defendants were deliberately and intentionally indifferent to those needs of which he was aware at the time, a plaintiff may not prevail. Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). In the present case, Plaintiff has failed to show he had serious or life threatening needs. Likewise, Plaintiff has filaed to show that the Served Defendants were deliberately indifferent to any of his serious medical needs. Thus, his complaint should be dismissed.
VIII. THE DEFENDANTS ARE ENTITLED TO ELEVENTH AMENDMENT IMMUNITY
Even if Plaintiff's claims against the Served Defendants had any merit whatsoever, the undersigned nonetheless would recommend dismissal of his complaint because the Served Defendants are officers of a state entity. It is well-settled that the State enjoys immunity from suit in this Court under the Eleventh Amendment to the United States Constitution. The pleadings clearly establish that the Defendants were employed by SCDC and were acting in their official capacities as agents of the State of South Carolina with respect to the incidents at issue. Plaintiff has no cause of action against the Defendants in their official capacities. Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
RECOMMENDATION
Based upon the foregoing, it is recommended that the Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment [20-1] should be granted.Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" The Serious Consequences of a Failure to Do So
The parties are hereby notified that any objections to the attached Report and Recommendation (or Order and Recommendation) must be filed within ten (10) days of its service. 28 U.S.C. § 636 and Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. Fed.R.Civ.P. 6. Based thereon, this Report and Recommendation, any objections thereto, and the case file will be delivered to a United States District Judge fourteen (14) days after this Report and Recommendation is filed. Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142 F.R.D. 91, 94 n. 3, (S.D.N.Y. 1992). A magistrate judge makes only a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v. Weber, 423 U.S. 261, 270-271 (1976); and Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993).During the period for filing objections, but not thereafter, a party must file with the Clerk of Court specific, written objections to the Report and Recommendation, if he or she wishes the United States District Judge to consider any objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. See Keeler v. Pea, 782 F. Supp. 42, 43-44 (D.S.C. 1992); andOliverson v. West Valley City, 875 F. Supp. 1465, 1467, (D.Utah 1995). Failure to file specific, written objections shall constitute a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir.) 1984, cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841, 845-847 nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's Report and Recommendation to which he or she did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991). See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir. 1985) (party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). InHoward, supra, the Court stated that general, non-specific objections are not sufficient:
A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief simply objecting to the district court's determination without explaining the source of the error.Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court:
Just as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for review. * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing a [magistrate judge's] report.See also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989) ("no de novo review if objections are untimely or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984) ("plaintiff's objections lacked the specificity to trigger de novo review").
This notice, hereby, apprises the parties of the consequences of a failure to file specific, written objections. See Wright v. Collins, supra; and Small v. Secretary of HHS, 892 F.2d 15, 16 (2nd Cir. 1989). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing objections addressed as follows:
Larry W. Propes, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402