Opinion
C. A. 7:23-00097-MGL-MHC
10-31-2023
Alonzo C. Jeter, III, Plaintiff, v. Joseph Derham Cole, Sr.; J. Mark Hayes, II; Ralph Keith Kelly; Alan McCrory Wilson; Chelsey Faith Marto; Brandy W. McBee; Jean Hoefer Toal; Donald W. Beatty, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This a civil action filed by Plaintiff Alonzo C. Jeter, III, a state prisoner. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In an Order (ECF No. 22) dated May 12, 2023, Plaintiff was notified of pleading deficiencies and given the opportunity to amend his Complaint. See ECF No. 22. Plaintiff filed an Amended Complaint on June 22, 2023. ECF No. 36.
I. MOTION FOR JUDICIAL NOTICE/DISCOVERY/TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION
On June 12, 2023, Plaintiff filed a motion (ECF No. 27) titled “Motion for Judicial Notice of Denial/Hinderance of Access to Court.” He requests that the Court:
In the motion, Plaintiff also asked for an enlargement of time to file an amended complaint. ECF No. 25. In a text order dated June 14, 2023, the time for Plaintiff to file an amended complaint was extended until July 31, 2023. ECF No. 29.
1) Direct the SCDC to provide this Court a copy of all requests ARTSM and RTSM he has filed since February 27, 2023 til present and also all grievances he has filed and appeals of those grievances.
2) Secondly, Plaintiff asks that this Court take notice that Plaintiff experiences the same inequities as mentioned in Goss v. Moreley, CA No. 2:19-cv-2469-BHH-MGB (D.S.C. 2020) with regard to inadequate paper and envelopes. (I receive even less than Goss.)
[3] Lastly, Plaintiff asks that this Court take notice that simply attempting to explain Plaintiff's circumstances and need for enlargement of time and reasons for the need has caused Plaintiff to exhaust 4 of the 10 pages of paper Plaintiff is allowed. Plaintiff[] cannot catch up. Also, Plaintiff asks this Court to not be confused as to the SCDC Christmas Packet self-addressed stamped envelope Plaintiff provides wherewith he seeks that this Court return him a file-stamped copy of this filing.ECF No. 27 at 3-4.
To the extent Plaintiff is requesting “judicial notice” of the above, his motion should be denied. Plaintiff is asking the Court to take notice of his alleged limits on legal supplies and access to the courts. “[A] court may properly take judicial notice of ‘matters of public record' and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.'” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015); see also Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011). However, under the Federal Rules of Evidence, a court may take judicial notice of adjudicative facts only if they are “not subject to reasonable dispute,” in that they are “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. “Only indisputable facts are susceptible to judicial notice,” and judicial notice of legal conclusions would be inappropriate. Nolte v. Capital One Fin. Corp., 390 F.3d 311, 317 (4th Cir. 2004) (citing Fed.R.Evid. 201(b)); United States v. Daley, 378 F.Supp.3d 539, 546 (W.D. Va. 2019), aff'd sub nom., United States v. Miselis, 972 F.3d 518 (4th Cir. 2020). Thus, to the extent Plaintiff is requesting judicial notice, his motion should be denied.
To the extent Plaintiff is requesting discovery of certain documents including his grievances, such a motion is premature as this case has not been served and Defendants have not answered or otherwise appeared. Moreover, Plaintiff appears to be asking for documents from the South Carolina Department of Corrections (SCDC), which is not a party to this action. To the extent this is a motion requesting discovery, it should be denied.
Finally, to the extent Plaintiff's motion is a request for a temporary restraining order (TRO) or a request that a preliminary injunction be issued against SCDC to require that Plaintiff be provided with copies of certain documents and/or that he be provided with legal supplies, his motion should be denied. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the court may issue a TRO without notice to the adverse party or the party's attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.Fed. R. Civ. P. 65(b)(1). A TRO “expires at the time after entry-not to exceed 14 days-that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.” Fed.R.Civ.P. 65(b)(2). “The stringent restrictions imposed ... by Rule 65 on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 438-39 (1974).
Plaintiff's request for a TRO should be denied because Plaintiff is asking for relief from SCDC, which is not a party to this action. Plaintiff also has not complied with Fed.R.Civ.P. 65(b)(1) by providing specific facts in an affidavit or a verified complaint to clearly show that immediate and irreparable injury will result to him before Defendants can be heard in opposition. Additionally, Plaintiff does not explain why an injunction is being requested without notice, and he appears to be requesting relief exceeding fourteen days. See Fed.R.Civ.P. 65(b)(1)-(2).
A preliminary injunction is “an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991)) (internal quotation marks omitted); Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013). The decision whether to grant a preliminary injunction is committed to the equitable discretion of the district court. See Salazar v. Buono, 559 U.S. 700, 714 (2010); Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007).
It is recommended that any request for a preliminary injunction be denied because SCDC is not a party to this action and the motion is premature as this action has not yet been served, and Defendants have not answered or otherwise plead. “The court may issue a preliminary injunction only on notice to the adverse party.” Fed.R.Civ.P. 65(a)(1).
II. BACKGROUND
At the time Plaintiff filed this action, he was an inmate at the MacDougall Correctional Institution of the SCDC. He is currently housed at the Evans Correctional Institution of the SCDC. See ECF No. 40. Plaintiff brings this action under 42 U.S.C. § 1983 (§ 1983) for alleged violations of his Fifth and Fourteenth Amendment rights. He asserts that his equal protection and due process rights were violated and that there was a violation of the separation of powers. ECF No. 36 at 5. Plaintiff brings claims against Judge Joseph Derham Cole, Sr. (Judge Cole); Judge J. Mark Hayes, II (Judge Hayes); Judge Ralph Keith Kelly (Judge Kelly); South Carolina Attorney General Alan McCrory Wilson (Wilson); South Carolina Assistant Attorney General Chelsey Faith Marto (Marto); Cherokee County Clerk of Court Brandy W. McBee (McBee); Former Chief Justice of the Supreme Court of South Carolina Jean Hoefer Toal (Justice Toal); and Chief Justice of the Supreme Court of South Carolina Donald W. Beatty (Justice Beatty). Id. at 1-5.
In his Amended Complaint, Plaintiff claims that Judges Cole, Hayes, and Kelley violated rights guaranteed by the Fifth and Fourteenth Amendments because they violated the separation of powers doctrine, equal protection, and due process. He alleges that these Defendants handed over their ministerial duties to the South Carolina Office of the Attorney General. Plaintiff contends that these actions, along with actions by Clerk McBee, allowed Wilson and Marto to:
(1) Not provide notice of hearings and matters to pro se PCR applicants; (2) Not schedule motions that are filed in PCR actions and thus cause these motions to be hidden from the judges and thus not heard. Consequently the applicant is not able to have his motions heard; (3) Not schedule hearings on the merits of the application (4) Not schedule hearings on any procedural questions, and (5) to schedule when its own pleadings will be heard by the Chief Administrative Judges; (6) effectively weighing the merits of the claims.ECF No. 36 at 6 (errors in original).
Plaintiff states that he is a convicted and sentenced state prisoner. However, he provides no facts as to how these alleged actions have violated his (rather than a class of persons) rights. He may be attempting to bring claims concerning his 2015 criminal convictions and sentences that he is currently serving. Plaintiff requests injunctive relief and monetary damages. See ECF No. 36 at 11-14.
In his Complaint, Plaintiff appeared to also challenge his 2004 criminal convictions (discussed further below) for which he is no longer incarcerated. See ECF No. 1 at 7. He asserted that these convictions enhanced the current (2015 criminal convictions) sentences he is serving. However, it appears he is no longer bringing these claims as they are not included in the Amended Complaint. In the Court's May 2023 order (ECF No. 22), Plaintiff was specifically reminded that “[a] plaintiff may not amend a complaint in piecemeal fashion by merely submitting additional factual allegations.” McClary v. Searles, No. 3:15-cv-77-FDW, 2015 WL 2259312, at *1 n. 1 (W.D. N.C. May 13, 2015). An amended complaint replaces the original complaint and should be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted).
Plaintiff has not included a “Facts” section in his Amended Complaint. To provide background to help understand the history of Plaintiff's convictions and post-conviction proceedings, the facts discussed below have been gathered from Plaintiff's prior habeas case filed in this Court (case number 7:23-00097-MGL-MGB) as well as the criminal and post-conviction actions filed in Cherokee County. See Jeter v. Tucker, No. 2:19-CV-1945-MGL-MGB, 2020 WL 1102231, at *1-*4 (D.S.C. Jan. 14, 2020), report and recommendation adopted, No. CV 2:19-1945-MGL, 2020 WL 1082239 (D.S.C. Mar. 5, 2020); Cherokee County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Cherokee/PublicIndex/PISearch.aspx (last visited Oct. 26, 2023).
A federal court may take judicial notice of the contents of its own records, as well as those records of other courts. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that courts may take judicial notice of other courts' records and proceedings).
A. 2004 Convictions
In October 2004, Plaintiff pleaded guilty in Cherokee County to two counts of simple possession of crack cocaine, first offense (the first count was committed in January of 2004 and the second in September of 2004). He was sentenced to three years' imprisonment on each charge, suspended upon time served, with three years of probation (concurrent sentences). Plaintiff has previously asserted that he pleaded guilty only after getting the State and the Court to agree that his two convictions would “merge”-that is, they would be entered as a single, first offense conviction for the purposes of any recidivism-based enhancements on any future charges he might face.
Case numbers 2004GS1100925 (possession of crack) and H004830 (indictment number 2004GS1100926) (possession of crack).
Plaintiff did not appeal his 2004 sentences, nor did he immediately file a collateral challenge in state or federal court. The sentences have expired.
B. 2015 Convictions
After police filmed Plaintiff selling methamphetamine to an informant on three separate occasions in January 2019, Plaintiff was charged with two counts of distributing methamphetamine, third or subsequent offense; two counts of distributing methamphetamine within a proximity to a park or school, third or subsequent offense; and one count of trafficking methamphetamine, third offense. Plaintiff, represented by counsel, reached a negotiated-sentence plea agreement with the State; in exchange for Plaintiff pleading guilty to some lesser-included offenses, the State would recommend to the court that Plaintiff be sentenced to fifteen years' imprisonment. In July 2015, Plaintiff pleaded guilty to two counts of distributing methamphetamine, second (case numbers 2015A1110100230 and 2015A1110100233); two counts of distributing methamphetamine with a proximity to a part or school (case numbers 2015A1110100231 and 2015A1110100234); and one count of trafficking in methamphetamine, second offense (case number 2015A1110100235). At the guilty-plea hearing, the court instructed the prosecutor to identify all of Plaintiff's prior convictions that the State was using to charge Plaintiff as a repeat offender. The prosecutor identified a 2005 conviction for possession of a controlled substance and never mentioned the 2004 crack convictions. Plaintiff was sentenced to fifteen years' imprisonment on each of the two distribution charges and the trafficking charge, and ten years' imprisonment on each of the distribution-within-proximity charges. The state court ran all the sentences concurrently. Plaintiff did not file a direct appeal.
C. 2016 PCR Application
In July 2016, Plaintiff filed a PCR application (2016CP1100293) as to his 2015 convictions. He claimed that plea counsel provided ineffective assistance of counsel by failing to challenge the State's decision to charge him as a third offender. He contended he had no prior convictions that qualified as predicate offenses for any recidivist charge, and none as to a third- offense charge. He faulted counsel for not recognizing this and for encouraging him to accept a negotiated sentence on second-offense charges.
The PCR court held a hearing in March 2017. Plaintiff asserted that the 2013 controlled-substance conviction cited by the state during his guilty plea involved marijuana, and the 2005 conviction was actually his 2004 crack conviction. He argued that South Carolina did not allow charges to be enhanced with prior offenses that involved marijuana or were over ten-years old such that the State improperly charged him with third offenses and plea counsel erred in not recognizing this and doing something about it.
Plea counsel testified that they discussed Plaintiff's prior convictions, but these convictions were immaterial to counsel because the prosecutor planned to try the 2015 charges separately in order to trigger recidivist enhancements that could result in Plaintiff ultimately getting sentenced to life without parole. Plea counsel believed the prosecutor would succeed in that plan such that whether the prior convictions properly served as predicate offenses for the 2015 charges was unlikely to make a difference and thus plea counsel focused on negotiating a deal for as little prison time as possible.
At a second hearing in June 2017, the State presented indictments and sentencing sheets from the 2004 crack cases. The State told the PCR court that after the first hearing, it discovered the 2004 case involved two convictions, not one. The State argued that the convictions were separate, meaning that even though the September 2004 offense was disposed of as a first-offense crime, it counted as a second offense for the purpose of recidivism enhancements on future charges. The State also contended that South Carolina's ten-year limitation on using prior convictions to enhance charges did not apply to second offenses, such that Plaintiff was properly charged in 2015 with third offenses.
Plaintiff asserted that the 2004 convictions had to be treated as one. The PCR court disagreed and granted the State's motion to reopen the record, allowing the indictments and sentencing sheets into the record of his challenge to his 2015 convictions.
In July 2017, the PCR court denied Plaintiff's PCR application. The court found that plea counsel performed sufficiently as to the sentencing enhancements because plea counsel had a strategy to avoid separate trials and a possible life sentence. The PCR court also found that plea counsel's alleged error did not prejudice Plaintiff because he had enough prior convictions to make him eligible for recidivism-based sentence enhancements based on its finding that Plaintiff's 2004 crack convictions could be treated as separate offenses.
Plaintiff appealed and certiorari was granted on the issue of whether the PCR court erred in finding that plea counsel was not ineffective for failing to provide adequate advice concerning proximity within one-half mile of a park/school. On February 15, 2023 (remittitur date May 1, 2023), the South Carolina Court of Appeals affirmed the PCR court's order.
D. 2017 PCR Application
In June 2017, Plaintiff filed a PCR application challenging his 2004 crack convictions. Proceeding pro se, he alleged he pleaded guilty in 2004 based on an agreement with the State that his two crack charges would be treated as a single, first-offense conviction. He claimed that the State breached that agreement by presenting the convictions as separate convictions to the PCR court that made him eligible for recidivist charges in 2015. He requested a hearing and appointment of counsel.
Without holding a hearing, the PCR court issued an order conditionally dismissing the case in December 2017, finding the case barred by both the statute of limitations for PCR actions and the equitable doctrine of laches. It also found that Plaintiff's breach-of-agreement claim was not a valid ground for relief under the PCR statute.
Plaintiff objected to the conditional order, requested appointment of counsel, and amended his PCR application to assert an ineffective assistance claim about his 2004 plea counsel. He alleged counsel failed to ensure that the public records clearly reflected the merging agreement. Plaintiff contended this failure allowed the State to prevail in the 2016 PCR case by denying the existence of a merger agreement.
The PCR court issued a final order dismissing the case in August 2018. The court stated that, after reviewing Plaintiff's original 2017 application and objections to the conditional order, it was adopting its reasoning from the conditional order. The court did not address or acknowledge the added ineffective assistance of counsel claim and did not address Plaintiff's requests for counsel or a hearing.
Plaintiff filed a notice of appeal as to the 2017 PCR. The Supreme Court of South Carolina, before Plaintiff submitted his petition, dismissed the case finding that Plaintiff failed to explain why the PCR court's statute-of-limitations ruling was erroneous. See Rule 243(c), SCACR (requiring PCR applicant seeking review of order dismissing application as untimely to explain why the ruling was improper).
E. 2019 PCR Application
In June 2019, Plaintiff filed a PCR application (third PCR, second as to the 2004 convictions) claiming that his lawyer for the 2004 crack charges was ineffective. The PCR court issued a conditional order of dismissal on December 14, 2020. Plaintiff filed responses to the conditional order.
On September 9, 2021, the PCR court dismissed Plaintiff's PCR application. The court stated it reviewed all of Plaintiff's responses in full and found them insufficient to warrant an evidentiary hearing. It noted Plaintiff's claims of newly discovered evidence but found that he failed to establish a prime facie case as to the newly discovered evidence. The court dismissed the case, finding that the application was barred for untimeliness, barred by the doctrine of res judicata because Plaintiff had a full opportunity to litigate all of his allegations in his prior action, and the application was barred as successive. Plaintiff filed a notice of appeal, and on September 14, 2022, the Supreme Court of South Carolina dismissed the appeal on the ground that Plaintiff failed to show there was an arguable basis for asserting that the determination by the lower court was improper pursuant to Rule 243(c), SCACR. Plaintiff filed a petition for rehearing. On October 26, 2022, the Supreme Court of South Carolina found no basis for granting a rehearing and denied his petition for such.
F. 2019 § 2254 Petition
On July 10, 2019, Plaintiff filed a petition in this Court seeking habeas corpus under 28 U.S.C. § 2254. He attacked his 2004 state court convictions. In a report and recommendation filed January 14, 2020, Magistrate Judge Mary Gordon Baker recommended that the petition be dismissed for lack of jurisdiction as Plaintiff was not “in custody” under the expired 2004 convictions he challenged. On March 5, 2020, United States District Judge Mary Geiger Lewis adopted the report and recommendation and dismissed the petition without prejudice for lack of subject matter jurisdiction. Jeter v. Tucker, No. 2:19-CV-1945-MGL-MGB, 2020 WL 1102231 (D.S.C. Jan. 14, 2020), report and recommendation adopted, No. CV 2:19-1945-MGL, 2020 WL 1082239 (D.S.C. Mar. 5, 2020).
At the time Plaintiff filed his § 2254 petition, his 2019 PCR application was still pending and Plaintiff filed a motion to stay. Magistrate Judge Baker noted that the Court did not need to address the issue unless it found that jurisdiction existed.
G. 2023 § 2254 Petition (Challenging 2015 Convictions)
On July 10, 2023, Plaintiff filed another § 2254 petition which is currently pending in this Court. See Jeter v. Martell, No. 9:23-03253-MGL-MHC (D.S.C.). In that petition, Plaintiff challenges his July 2015 convictions (two counts of distributing methamphetamine, two counts of distributing methamphetamine with a proximity to a park or school, and one count of trafficking in methamphetamine).
III. STANDARD OF REVIEW
A pro se Complaint is reviewed pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). However, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
IV. DISCUSSION
This action is subject to summary dismissal because this court lacks jurisdiction over Plaintiff's claims. Even if Plaintiff can establish jurisdiction, his claims are subject to summary dismissal. As discussed below, Plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994); Defendants Judges Cole, Hayes, Kelley, Toal, and Beatty are entitled to judicial immunity; Plaintiff fails to state a claim; Defendant McBee is entitled to quasi-judicial immunity; and Defendants Wilson and Marto are entitled to prosecutorial immunity.
A. Lack of Jurisdiction
Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). The Complaint filed in this case is subject to summary dismissal without service of process because it fails to state a claim which this Court may consider under its federal question jurisdiction, see 28 U.S.C. § 1331, or its diversity jurisdiction, see 28 U.S.C. § 1332. Plaintiff appears to be attempting to assert federal question jurisdiction pursuant to § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States,” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
A district court may also have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States....” 28 U.S.C. § 1332. However, Plaintiff has not asserted diversity jurisdiction and has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side).
Initially, to the extent that Plaintiff is challenging the fact or duration of his current confinement as to his 2015 convictions, this is not a remedy available in a civil rights action. See Heck, 512 U.S. at 481 (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (attacking the length or duration of confinement is within the core of habeas corpus).
To the extent that Plaintiff is attempting in this § 1983 case to appeal the results of a ruling from a state court action as to his 2015 convictions and any related state post-conviction proceedings to this court, the current action should be dismissed for lack of jurisdiction because federal district courts do not hear “appeals” from state court actions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983) (a federal district court lacks authority to review final determinations of state or local courts because such review can only be conducted by the Supreme Court of the United States under 28 U.S.C. § 1257); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); see also Hulsey v. Cisa, 947 F.3d 246 (4th Cir. 2020). It is well-established that an inmate may not “appeal” an unfavorable decision by means of a § 1983 action. See Duren v. Hood, No. 2:17-cv-1127-JMC-MGB, 2018 WL 3687977, at *7 (D.S.C. July 2, 2018), report and recommendation adopted, 2018 WL 3660094 (D.S.C. Aug. 2, 2018); see also Holsey v. Bass, 519 F.Supp. 395, 413 (D. Md. 1981) (§ 1983 claim expressing unhappiness with the outcome of prior litigation is frivolous and not a substitute for appeal). To rule in favor of Plaintiff on claims filed in this action may require this court to overrule and reverse orders and rulings made in the state court. Such a result is prohibited under the Rooker-Feldman doctrine. See Davani v. Virginia Dep't. of Transp., 434 F.3d 712, 719-720 (4th Cir. 2006); see also Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293-294 (2005); Jordahl v. Democratic Party of Va., 122 F.3d 192, 201 (4th Cir. 1997).
As noted above, it does not appear that Plaintiff is challenging his 2004 convictions, sentences, or post-conviction proceedings in his Amended Complaint. However, to the extent his does raise these issues, they are subject to summary dismissal for these same reasons.
The Rooker-Feldman doctrine is applicable both to claims at issue in a state court order and to claims that are “inextricably intertwined” with such an order. See Exxon Mobil, 544 U.S. at 284. Plaintiff has not alleged any facts to indicate that this is a case where the federal complaint raises claims independent of, but in tension with, a state court judgment such that the Rooker-Feldman doctrine would not be an impediment to the exercise of federal jurisdiction. See Vicks v. Ocwen Loan Servicing, LLC, 676 Fed.Appx. 167 (4th Cir. 2017) (district court erred in applying Rooker-Feldman doctrine to bar appellants' claims where the claims did “not seek appellate review of [the state court] order or fairly allege injury caused by the state court in entering that order”); Thana v. Bd. of Licenser Comm'rs for Charles Cty., Md., 827 F.3d 314, 320 (4th Cir. 2016) (Rooker-Feldman doctrine is not an impediment to the exercise of federal jurisdiction when the federal complaint raises claims independent of, but in tension with, a state court judgment simply because the same or related question was aired earlier by the parties in state court).
Appeals of orders issued by lower state courts must go to a higher state court. Congress, for more than two hundred years, has provided that only the Supreme Court of the United States may review (review is discretionary by way of a writ of certiorari and is not an appeal of right) a decision of a state's highest court. See 28 U.S.C. § 1257; Ernst v. Child and Youth Servs., 108 F.3d 486, 491(3d Cir. 1997). This Court cannot sit in judgment of a state court decision, and must dismiss the case for lack of subject matter jurisdiction. See, e.g., Moore v. Commonwealth of Virginia Dep't of Soc. Servs., No. 3:15CV515, 2016 WL 775783, at *5 (E.D. Va. Feb. 25, 2016).
Plaintiff appears to argue that he may bring this action because it is for an alleged violation of constitutional law as opposed to an attack on a state court judgement. However, Plaintiff has no claim independent of the adverse state-court decisions. Instead he appears to be asking that this Court declare that the State of South Carolina's PCR procedures violated his constitutional right so that he may have further review of his criminal convictions and sentences. In order to grant this relief, however, the Court would have to conduct what amounts to an appellate review of issues already decided by a state court of competent jurisdiction and override, or otherwise find invalid, the determinations that resulted in the denial of his PCR application(s). This is precisely the type of impermissible “appellate review” barred under the Rooker-Feldman doctrine. See Stanfield v. Charleston Cty. Court, Case No. 2:15-cv-00756-PMD-MGB, 2015 WL 4929186, at *5 (D.S.C. Aug. 18, 2015) (“Despite Plaintiff's strenuous attempts to distinguish his cause of action as a violation of constitutional law as opposed to an attack on a state court judgment, Plaintiff has no claim independent of the adverse state-court decisions.”); Bell v. Stirling, No. 122CV01319TMCMGB, 2022 WL 5236739, at *6 (D.S.C. Aug. 31, 2022), report and recommendation adopted, No. 1:22-CV-1319-TMC, 2022 WL 4462951 (D.S.C. Sept. 26, 2022).
In an effort to show jurisdiction, Plaintiff asserts in his Amended Complaint that he “makes clear that he does not seek that this Court conduct an appellate review of any issues which were decided by the State court and override, or otherwise find invalid, any of the determinations which resulted in the denial of Plaintiff's application for PCR.” ECF No. 36 at 12. He instead appears to be attempting to bring claims on behalf of a group of PCR applicants. See, e.g., ECF No. 36 at 7. However, Plaintiff, as a non-lawyer, cannot bring claims on behalf of others. See Laird v. Tatum, 408 U.S. 1 (1972); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482 (1982); Flast v. Cohen, 392 U.S. 83, 99 (1968) (a district court, when determining whether a plaintiff has standing to sue, must focus on the status of the party who has filed the complaint, such that the merits of the case are irrelevant); Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 506 (1972); Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981) (a prisoner's suit is “confined to redress for violation of his own personal rights and not one by him as a knight-errant for all prisoners”). Cf. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (a pro se prisoner cannot be an advocate for others in a class action).
This argument appears to be contradicted by Plaintiff's claim that he has suffered the injury that “he has not been provided an opportunity to bring his claims before a court due to the unconstitutional hindrances and blockages of access to the court.” ECF No. 36 at 11.
Additionally, to the extent Plaintiff only brings claims about the State of South Carolina's PCR process and administration and does not bring any claims on his own behalf, he fails to show that he has standing. Article III standing requires, at a bare minimum, that a plaintiff allege “(1) an injury in fact (i.e., a ‘concrete and particularized' invasion of a ‘legally protected interest'); (2) causation (i.e., a ‘fairly ... trace [able]' connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is ‘likely' and not merely ‘speculative' that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit).” David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013) (citing Sprint Commc'ns Co., L.P. v. APCC Serv., Inc., 554 U.S. 269, 273-74 (2008)). To the extent he is not challenging his own convictions, sentences, or PCR proceedings, Plaintiff has not alleged that he has suffered an injury in fact and thus he fails to show standing.
B. Claims for Monetary Damages are Barred by Heck
Additionally, Plaintiff's attempts to bring claims for monetary damages are barred because he has not alleged that his 2015 convictions or sentences have been overturned or otherwise found to be invalid. In Heck, the Supreme Court established the following test to determine whether a prisoner's claim for violation of due process in the context of a criminal proceeding is cognizable under 42 U.S.C. § 1983:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Heck, 512 U.S. at 487. Any claims Plaintiff is asserting about his 2015 convictions or sentences are barred by Heck because he is still incarcerated as to these charges and he has not shown that these convictions or sentences have been invalidated.
Even if Plaintiff raises claims for monetary damages as to his 2004 convictions or sentences, such claims fail as he has not shown that they have been invalidated. Where a plaintiff has already served his sentence, the Heck bar may not apply. See Wilson v. Johnson, 535 F.3d 262, 267-268 (4th Cir. 2008) (holding that former prisoners may in certain circumstances be exempt from Heck's favorable termination requirement); Griffin v. Baltimore Police Dep't., 804 F.3d 692, 696 (4th Cir. 2015) (There is a narrow exception to the Heck bar, however, for cases where a litigant “could not, as a practical matter, [have sought] habeas relief” while in custody.”); but see Bishop v. County of Macon, 484 Fed.Appx. 753 (4th Cir. 2012) (clarifying that the Wilson exemption to Heck does not apply to every § 1983 suit brought by a former prisoner who failed to obtain habeas relief while in custody). Here, however, Plaintiff has alleged no facts to indicate that he is exempt from the favorable termination requirement. Similar to the plaintiff in Bishop, Plaintiff was sentenced to three years' probation. Because he was on probation, he satisfied the custody requirement for habeas relief. See Bishop, 484 Fed.Appx. at 755; Jones v. Cunningham, 371 U.S. 236, 240-43 (1963). In Wilson, the plaintiff had a window of only four months to meet the favorable termination requirement. Here, however, Plaintiff had three years to do so but did not pursue habeas relief during that three-year period. There is no indication that he appealed the 2004 convictions or sentences or that he pursued a PCR during that time. “Wilson does not permit a plaintiff to endrun Heck by simply sitting on his rights until all avenues for challenging a conviction have closed.” Bishop, 484 Fed.Appx. at 755. Nor has Plaintiff presented any facts to indicate that he was unable to pursue habeas relief during that time.
C. Failure to State a Federal Claim
Even if Plaintiff can establish federal jurisdiction, he fails to state a federal claim. He appears to allege that his Fifth and Fourteenth Amendment rights were violated because counsel is not always appointed in PCR cases and hearings are not always held in PCR cases. However, as noted above, he fails to allege any claims about this that are specific to him.
Generally, there is no Sixth Amendment right to counsel in PCR hearings. Coleman v. Thompson, 501 U.S. 722, 752-53 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings....Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”). The South Carolina Rules of Civil Procedure provide:
(d) Appointment of Counsel for Hearing. If, after the State has filed its return, the application presents questions of law or fact which will require a hearing, the court shall promptly appoint counsel to assist the applicant if he is indigent. Counsel shall be given a reasonable time to confer with the applicant. Counsel shall insure that all available grounds for relief are included in the application and shall amend the application if necessary.SCRCP 71.1(d); see Hilton v. State, 810 S.E.2d 852, 853-54 (S.C. 2018) (“Rule 71.1(d) of the [SCRCP]‘mandates the appointment of counsel for indigent PCR applicants whenever a PCR hearing is held to determine questions of law or fact.'”) (quoting Whitehead v. State, 426 S.E.2d 315, 316 (S.C. 1992)). As discussed above, Plaintiff was represented by counsel at his PCR hearing. Additionally, to the extent Plaintiff is merely alleging a violation of a South Carolina law, it does not provide a basis for federal court jurisdiction.
Nor has Plaintiff stated any facts to support a Fifth or Fourteenth Amendment claim as to his PCR case(s). The Fifth Amendment right of due process does not extend beyond the first appeal. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). The Supreme Court in Coleman noted:
We held in Ross [v. Moffitt, 417 U.S. 600 (1974)] that neither the fundamental fairness required by the Due Process Clause nor the Fourteenth Amendment's equal protection guarantee necessitated that states provide counsel in state discretionary appeals where defendants already had one appeal as of right ... Similarly, in Finley we held there was no right to counsel in state collateral proceedings after exhaustion of direct review....Given that a criminal defendant has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review, it would defy logic for us to hold that Coleman had a right to counsel to appeal a state collateral determination of his claims of trial error.Coleman, 501 U.S. at 756-57.
Prisoners have only a “limited interest” in post-conviction proceedings, and there is no due process violation unless “the State's procedures for postconviction relief offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental, or transgresses any recognized principle of fundamental fairness in operation.” Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009); see also LaMar v. Ebert, 756 Fed.Appx. 245, 251 (4th Cir. 2018) (“In such circumstances, the State has more flexibility in deciding what procedures are needed in the context of postconviction relief, and due process does not dictate the exact form of post-conviction assistance a State must provide.”) (internal quotations and alterations omitted) (quoting Morrison v. Peterson, 809 F.3d 1059, 1065 (9th Cir. 2015)). Plaintiff has not alleged facts as to such a violation.
Plaintiff contends that Justice “Toal's Administrative Order [] has served as the catalyst and moving force of the constitutional violations and unconstitutional practices and customs of the Chief Administrative Judges, Alan Wilson and Chelsey Marto.” ECF No. 36 at 11. He appears to refer to an administrative order issued by Justice Toal on October 6, 2008 titled “Appointment of Counsel in Post-Conviction Relief Cases Before the Circuit Court” that provides:
If the Attorney General opposes the appointment of counsel for an indigent applicant, counsel will only be appointed as follows:
(1) If the Attorney General asserts that the application is barred as being successive or as being untimely under the statute of limitations,[1] counsel will not be appointed except upon written order of the Chief Judge for Administrative Purposes for the Court of Common Pleas in the circuit. In these cases, the Chief Judge will insure that counsel is only appointed for an indigent applicant when the facts raise a material issue regarding the applicability of the rule forbidding successive applications or the statute of limitations. [Cf. Gary v. State], 347 S.C. 627, 557 S.E.2d 662 (2001) (statute of limitations).
(2) In all other cases in which the State opposes the appointment of counsel, counsel will only be appointed upon written order of a circuit court judge under the standard contained in Rule 71.1, SCRCP.See https://www.sccourts.org/whatsnew/displaywhatsnew.cfm?indexID=477 (last visited Oct. 27, 2023). Thus, contrary to Plaintiff's argument that the Attorney General is in charge of scheduling and of whether counsel is appointed, the administrative order gives the state court judge the discretion to appoint counsel if the judge finds it is necessary.
Moreover, Wilson as Attorney General and Marto as an attorney in the office of the Attorney General do not have any authority over the State judges tasked with deciding Plaintiff's cases. See S.C. Const. art V (delineating the roles and responsibilities of the justices and judges of the South Carolina Supreme Court, Court of Appeals and Circuit Court, and the State's law enforcement officials, prosecutors, administrative officers and Attorney General). Moreover, as noted above, Plaintiff has not alleged facts as to how his rights were violated.
Moreover, to the extent Plaintiff is attempting to allege claims as to his PCR application related to his 2015 convictions, records from Cherokee County indicate that a hearing was held (March 2017) and Plaintiff represented by counsel (Stephen D. Epps). Epps filed a notice of appeal and Plaintiff then proceeded pro se in the PCR appeal.
Plaintiff also alleges that due process and equal protection rights are violated because of the State of South Carolina's failure to apply the “scintilla of evidence” standard in PCR actions. He alleges that the preponderance of evidence burden should be set aside and the burden shifts when Wilson and Marto make “motions requesting [that] the pro se applicant's [PCR] action be summarily dismissed.” ECF No. 36 at 7-8. Again, Plaintiff fails to allege any personal claim and has not alleged any facts as to a constitutional violation in his case.
In a PCR action, “[t]he burden of proof is on the Applicant to prove his allegations by a preponderance of the evidence.” Frasier v. State, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e), SCRCP).
Plaintiff claims that Defendants have violated the separation of powers doctrine. However, the separation of powers doctrine, which is embodied in the federal Constitution, is not binding on the states. Grimm v. Johnson, No. 3:10CV593, 2011 WL 3321474, at *2 (E.D. Va. Aug. 2, 2011); see Whalen v. United States, 445 U.S. 684, 689 n.4 (1980); Garcia v. Strom, No. CV 3:21-1715-JMC-SVH, 2021 WL 10319075 (D.S.C. June 23, 2021) (“[T]he United States Constitution does not define the separation of powers in state governments.”), report and recommendation adopted, No. 3:21-CV-1715-SAL, 2023 WL 2071815 (D.S.C. Feb. 17, 2023), aff'd, No. 23-1280, 2023 WL 3598600 (4th Cir. May 23, 2023).
Plaintiff may be alleging that Defendants violated Article I, § 8 of the South Carolina Constitution that provides:
In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.S.C. Const. art. I, § 8. However, such a claim is a state law claim, not a federal claim.
D. Judicial Immunity
Defendants Judges Cole, Hayes, and Kelly are additionally subject to summary dismissal because, as to any claims arising out of their judicial actions, they are entitled to judicial immunity. See Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-64 (1978); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987) (a suit by South Carolina inmate against two Virginia magistrates); Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985) (“It has long been settled that a judge is absolutely immune from a claim for damages arising out of his judicial actions.”); see also Siegert v. Gilley, 500 U.S. 226 (1991) (immunity presents a threshold question which should be resolved before discovery is even allowed). Further, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority.” Stump, 435 U.S. at 356-57. Judicial immunity is not pierced by allegations of corruption or bad faith. Pierson v. Ray, 386 U.S. 547, 554 (1967) (holding that “immunity applies even when the judge is accused of acting maliciously and corruptly”). Judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mireles, 502 U.S. at 11.
E. Quasi-Judicial Immunity
Defendant McBee, a state court employee, is also subject to summary dismissal as she is entitled to quasi-judicial immunity as to her actions taken pursuant to judicial order or the court's direction. See Briscoe v. LaHue, 460 U.S. 325, 334-35 (1983) (noting that quasi-judicial immunity accorded to individuals who play integral part in judicial process); Johnson v. Turner, 125 F.3d 324, 332 (6th Cir. 1997) (finding clerk's office employees, acting as a judge's designee, are entitled to quasi-judicial immunity). [C]ourt clerks enjoy derivative absolute judicial immunity when they act in obedience to a judicial order or under the court's direction. McCray v. Maryland, 456 F.2d 1, 5 (4th Cir. 1972); see also Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995) (holding that causes of action against clerks of court for negligent conduct impeding access to the courts cannot survive).
F. Prosecutorial Immunity
Defendants Wilson and Marto are additionally subject to summary dismissal because they are entitled to prosecutorial immunity. Prosecutors have absolute immunity from damages for activities performed as “an officer of the court” where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein, 555 U.S. 335, 341343 (2009). For example, when a prosecutor “prepares to initiate a judicial proceeding,” “appears in court to present evidence in support of a search warrant application,” or conducts a criminal trial, bond hearings, grand jury proceedings, and pre-trial “motions” hearings, absolute immunity applies. Id. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000). Therefore, to the extent Plaintiff is attempting to assert claims against Defendants Wilson and Marto based on their participation in his post-conviction proceedings, his claims are barred. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”); Dowdle v. Skinner, No. 6:12-cv-3253-DCN, 2013 WL 5771199, at *2 (D.S.C. Oct. 24, 2013); see also Pressley v. McMaster, No. 3:14-cv-04025-JMC, 2015 WL 5178505, at *4 (D.S.C. Sept. 4, 2015) (“Representing the state's interest in criminal appeals or otherwise defending the validity of a conviction or sentence on appeal or in post[-]conviction proceedings is ‘intimately associated with the judicial phase of the criminal process,' and thus constitutes an immune function.”); James v. Wright, No. 1:13-1438-TMC-SVH, 2013 WL 4056311, at *1 (D.S.C. Aug. 12, 2013) (finding that prosecutors, who the plaintiff alleged violated his due process rights by failing to schedule a post-trial hearing, were entitled to prosecutorial immunity).
G. State Law Claims
Plaintiff may also be attempting to assert state law claims. However, as Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...”. 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side. Here, Plaintiff and Defendants are all citizens of South Carolina.
Thus, Plaintiff may not bring his claims pursuant to § 1332. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999)(“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
V. RECOMMENDATION
Based on the foregoing, it is recommended that Plaintiff's motion for a temporary restraining order/preliminary injunction (ECF No. 27) be DENIED, and the Court dismiss this action without prejudice, without leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “[w]hen a district court dismisses a complaint or all claims without granting leave to amend, its order is final and appealable”).
Plaintiff's attention is directed to the important notice on the following page.
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).