Opinion
CIVIL ACTION NO. 9:17-3485-BHH-BM
08-20-2019
Kendrick M. Nesbitt, Plaintiff, v. Major James Parish, Capt. Jones, Lt. Craig Beckett and CO English, Defendants.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S. § 1983. Plaintiff, an inmate with the South Carolina Department of Corrections (SCDC), alleges violations of his constitutional rights by the named Defendants.
42 U.S.C. § 1983 "'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 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. on January 4, 2019. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on January 7, 2019, advising Plaintiff of the importance of a dispostive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to file an adequate response, the Defendants' motion may be granted, thereby ending his case. However, Plaintiff failed to respond to the Roseboro Order or to the pending motion for summary judgment, so a Report and Recommendation was entered on February 14, 2019 recommending that this case be dismissed for lack of prosecution. Plaintiff was, however, advised that if he notified the Court within the time set forth for filing objections to the Report and Recommendation that he wished to continue with the case and provided a response to the motion for summary judgment, the Report and Recommendation would be vacated.
A response in opposition to the motion for summary judgment was thereafter received by the Clerk's office the following day, and an Order was entered vacating the Report and Recommendation that same day. The Defendants filed a reply to the Plaintiff's response on March 4, 2019, following which Plaintiff filed additional responses on March 11, 2019 and April 15, 2019. The Defendants' motion for summary judgment is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d) and (e), D.S.C. The Defendants have filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Plaintiff's Allegations and Summary Judgment Standard
Plaintiff alleges in his verified Complaint, in toto, as follows:
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Since Plaintiff has filed a verified Complaint, the undersigned has considered the factual allegations set forth therein in issuing a recommendation in this case.
While being detained in SHU (lockup); during December of 2015; at Broad River Correctional Institution[.] During the second and third week of December. More than one occasion[.] One incident (the first) where Lt. Beckett slammed the door on my face while contraband c/o English held me against the wall (while I was in full restraints)[.] Two nurses (Nurse Williams who quit); Nurse Tidball [were] walking by. They come to check on me[.] . . . on other times I was punched and beaten with a broom sticks[.]Plaintiff alleges claims for "use of excessive force; life being endangered[ ] by being shackled and being beaten; also telling other inmates I work for them[.]" Plaintiff claims that he suffered a "severe concussion", that his nose was bleeding, and that he suffered from "severe swelling in my wrist and ankles b/c restraints were so tight". Plaintiff seeks monetary damages. See generally, Plaintiff's Verified Complaint.
The Defendants assert that they are entitled to summary judgment in this case on several grounds: 1) Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit, 2) Plaintiff's claims are improperly pled, 3) Plaintiff has failed to prove an excessive force claim under the Eighth Amendment, and 4) they are entitled to qualified immunity from suit. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). Further, while the Federal Court is charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990).
Here, after careful review and consideration of the arguments and evidence submitted, the undersigned finds that the Defendants are entitled to summary judgment due to Plaintiff's failure to properly exhaust his administrative remedies prior to filing this lawsuit.
While some of the Defendants' remaining grounds for summary judgment may also have merit, since, if Plaintiff is found to have failed to exhaust his administrative remedies, his claims will be dismissed without prejudice, in consideration of Plaintiff's pro se status the undersigned has only addressed that issue. Lee v. South Carolina Dep't. of Corrections, No. 15-4415, 2016 WL 3176582 at * * 1-2 (D.S.C. June 2, 2016) [dismissing case without prejudice due to prisoner's failure to exhaust administrative remedies].
Discussion
As noted, the Defendants argue in their motion, inter alia, that they are entitled to dismissal of Plaintiff's Complaint because Plaintiff did not exhaust his administrative remedies with respect to the claims asserted prior to filing this lawsuit. Pursuant to 42 U.S.C. § 1997e(a), "[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." Through the enactment of this statute, "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001); see Porter v. Nussle, 534 U.S. 516 (2002); Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001) [exhaustion required even though plaintiff claimed he was afraid]; see also Claybrooks v. Newsome, No. 00-7079, 2001 WL 1089548 (4th Cir. Sept. 18, 2001) (unpublished opinion) [applying Booth v. Churner to affirm district court's denial of relief to plaintiff]. Accordingly, the Defendants are correct that before Plaintiff may proceed with his federal claims against them in this Court, he must first have exhausted the administrative remedies that were available to him at the prison with respect to these claims.
The Defendants have the burden of showing that Plaintiff failed to exhaust his administrative remedies. See Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 683 (4th Cir. 2005) [inmate's failure to exhaust administrative remedies is an affirmative defense to be both pled and proven by the Defendant]; Jones v. Bock, 549 U.S. 199 (2007). To meet this burden, the Defendants have submitted an affidavit from Sherman Anderson, Chief of the Inmate Grievance Branch with the SCDC Office of General Counsel, who attests that he has searched the SCDC's records for any SCDC Form 10-5s (Step One Grievance Form) submitted by the Plaintiff during his period of incarceration at the Broad River Correctional Institution (BCI), where the alleged incident(s) at issue occurred, and has found only one grievance that "remotely" relates to his allegations. Moreover, Anderson attests that Plaintiff's grievance file does not reflect, and he is not aware of, any attempts by Plaintiff to timely grieve any alleged incidents with Beckett or English that may have occurred in December 2015. In fact, Anderson attests that Plaintiff's grievance file reflects that he did not file a single grievance during the month of December 2015.
In addition to the facts relating to the SCDC grievance procedures set forth by Anderson in his affidavit, this Court can take judicial notice from previous cases filed in this Court that, under the SCDC Grievance Procedure, an inmate must first attempt to resolve the issue through an Informal Resolution through submission of a Request to Staff Form submitted to the appropriate staff member within eight (8) working days from the date of the incident. If the matter is not informally resolved, the inmate must then file a Step 1 Grievance form within eight working days of receiving a response to the Request to Staff Member Form, a copy of which must be attached to the Step 1 Grievance. If it is not, the inmate is given five days from the date the Step 1 Grievance is returned to him to attach the answered Request to Staff Member form and resubmit the grievance. If a Step 1 grievance is denied by the Warden, in order to exhaust his remedies the inmate must then appeal the Warden's decision by filing a Step 2 appeal with the Division Director of Operations within five (5) days. See generally, Anderson Affidavit, ¶ ¶ 4-10; see also Aloe Creme Laboratories, Inc. v. Francine Co, 425 F.2d 1295, 1296 (5th Cir. 1970); Branton v. Ozmint, No. 08-2306, 2009 WL 1457144 at * 2 (D.S.C. May 22, 2009); Jenkins v. South Carolina Dept. of Corrections, No. 05-2800, 2006 WL 1083563 at * 5 (D.S.C. Apr. 18, 2006).
Specifically, Anderson attests that on or about June 1, 2016, Plaintiff submitted a Step 1 grievance wherein he alleged that he had previously submitted a grievance regarding being "beat by Lt. Beckett and Officer English". See also attached Exhibit A (Grievance No. BRCI-480-16). In that grievance, which is dated June 1, 2016, Plaintiff complains that he had not "heard anything about that one" other than "the one . . . where the Major supposed to have put in for a police investigation [.]". Plaintiff also states in that grievance (incorrectly) that he does not have to fill out a staff request every time he puts in a grievance. Anderson attests, and Plaintiff's Step 1 grievance reflects, that this grievance was answered on June 10, 2016. The answer stated that Plaintiff had submitted three (3) previous grievances (identified as Grievance Nos. BRCI-429-16, 318-16, and 240-16) which had been forwarded to the office of Inspector General, Police Services, for possible review due to the allegations made therein, and that Plaintiff would be notified at some time in the future of the decision on those grievances. Anderson Affidavit, ¶ 13; see also attached Exhibit A. This grievance was filed months after the deadline for grieving any of the specific incidents referenced therein had expired. Moreover, as noted by the Defendants in their brief, Plaintiff has provided no evidence to show that he ever filed a Step 2 Appeal of the response he received to this grievance, or any other type of follow-up to this grievance.
With respect to the previous grievances referenced in the response to this grievance, Grievance No. BRCI-240-16 was submitted by the Plaintiff on March 1, 2016, and was responded to on March 11, 2016. The response stated that only one complaint per grievance was allowed, that each complaint must be on a separate grievance form and filed within eight days of receiving the signed stamped request (the informal resolution), that that the grievance was therefore being returned unprocessed, but notifying Plaintiff that he could refile his grievances on separate grievance forms within five days. Plaintiff was further notified that this deadline was March 16, 2016. Anderson Affidavit, ¶ ¶ 14-15, and attached Exhibit B. However, Plaintiff failed to timely re-file any new grievance, nor is there any evidence that Plaintiff ever filed a Step 2 appeal of this grievance.
Plaintiff raised two (and possibly three) separate issues in that grievance.
Plaintiff then filed an "untimely" second grievance on March 20, 2016 (BRCI-318-16). In that grievance, Plaintiff complained that he had originally filed a complaint on January 16, 2016, which was sent back because Plaintiff had not attached the required Request to Staff Form. However, that filing apparently did not involve the grievance relating to the Defendants in this case, as it references an incident on December 1, 2015 involving a "Lt. Awl", "Lt. Henry", "Sgt. Rob", and "C-O Chavis". Plaintiff complained that those officers had "let inmates out to beat me" (although they were apparently unable to). Plaintiff then complains that on December 2, 2015 he was "stripped" and taken to a holding cell with nothing on but boxers. The response to this grievance (dated March 30, 2016) advised Plaintiff that it had been forwarded to the Office of Inspector General, Police Services, for possible review due to the allegations made in the grievance. Plaintiff thereafter received a response on April 25, 2016 with the finding that "It has been determined that there is no Use of Force for this incident, no mention of alleged injuries in medical encounters, and further investigations into these allegations are not warranted". Plaintiff indicated by signature dated June 15, 2016 that he did not accept the Warden's decision and wished to appeal. The form includes instructions at the bottom notifying Plaintiff that if he is not satisfied with the Warden's decision, he may appeal by filing a Step 2 grievance appeal form within five days (June 20, 2016). Anderson Affidavit, ¶ 17, and attached Exhibit C. Plaintiff thereafter did file a Step 2 grievance appeal, but not until June 29, 2016, and which was apparently not received until July 5, 2016. However, the Step 2 grievance was denied because the underlying grievance had already been closed at the institutional level when the time for appealing had expired. Anderson Affidavit, ¶ 29, attached Exhibit D.
Plaintiff does say, as part of his narrative, that the "major was on board", possibly referring to the Defendant Major James Parrish, although he is not specifically named.
Plaintiff dated his signature as June 12, 2016.
The last of Plaintiff's previously submitted grievances, Grievance No. BRCI-429-16, was submitted by the Plaintiff on May 1, 2016. This grievance involves an incident that occurred on April 27, 2016, where Plaintiff alleged that the Defendant Beckett told him "o you want to put them people on me, I get you". Plaintiff states in this grievance that he did not know Beckett would "tell Bloods and Folks I said they had a hit on me". Plaintiff complains that if Beckett had not said anything he [Plaintiff] "would still be on yard", but that he was refusing protective custody (and wanted to be taken off of PC) and put back on the yard. Plaintiff was advised on May 12, 2016 that his grievance was being sent to the Office of Inspector General due to the nature of the allegations made, and the grievance was thereafter responded to on June 9, 2016. The response was that the grievance had been denied. Plaintiff indicated by signature dated June 15, 2016 that he did not accept the Warden's decision and wished to appeal. Anderson Affidavit, ¶ ¶ 19-20, attached Exhibit E. However, Plaintiff again did not timely file a Step 2 grievance appeal (as with Plaintiff's other grievance, although Plaintiff dated his Step 2 grievance form June 12, 2016, it was not filed until June 29, 2016, over a week past the deadline for filing, and was not received until July 5, 2016). As such, it was denied because his underlying grievance had already been closed at the institutional level prior to Plaintiff filing any appeal. Anderson Affidavit, ¶ 21, attached Exhibit F; see generally Anderson Affidavit, with attached Exhibits.
Plaintiff addresses the exhaustion issue in ¶ 8 of his response filed in opposition to the Defendants' motion, as follows: "As for exhausting grievance procedure: A) all exhibits of grievances whereupon incident of asphalt . B) there were times where I didn't get back the grievance in time, or refused paper and pencil. C) there was no need to go through administrative law court, because that deals with helping inmates get time back". In his third response (filed April 15, 2019) Plaintiff states "I was filing grievances [so] as to start my civil case against them . . . .," and again notes that he had "no need to go to administrative court". In his Complaint, Plaintiff states that he filed his grievance at the McCormick Correctional Institution (where he had been sent for mental health treatment), with the result that "they said they would do a police investigation numerous times but never happened". Plaintiff also states that his "grievance was halted b/c SCDC held it and then told me I was [too] late to complete".
Defendants do not contend, as part of their arguments involving exhaustion, that Plaintiff was required to appeal his grievances all the way to the state Administrative Law Court in order to exhaust his grievances. As such, this is a "red herring" argument by the Plaintiff.
After careful review and consideration of this evidence in conjunction with the applicable case law, the undersigned finds that the Defendants are entitled to summary judgment on the basis of failure to exhaust. To summerize, Plaintiff alleges that in December 2015 he was injured during an altercation with the Defendants Beckett and English. Plaintiff also apparently complains that his life has been placed in danger (no date provided) because unnamed officers (presumably the named Defendants) were telling other inmates that he [Plaintiff] worked for them. Pursuant to the SCDC grievance procedure, Plaintiff was required to first attempt to resolve any grievance he had by informal resolution through submission of a Request to Staff Form within eight working days of the incident at issue, with a Step 1 Grievance form (with a copy of the response to the Request to Form attached) having to be filed within eight working days of receiving the response to the staff form. However, Anderson attests in his affidavit, and Plaintiff has provided no evidence (or even allegations) to dispute, that Plaintiff did not file any grievances relating to this conduct during the month of December 2015. Rather, the documentary evidence provided (and Plaintiff has provided no evidence to dispute) shows that Plaintiff did not file a Step 1 grievance form until March 1, 2016 (Grievance No. BRCI-240-16). That grievance was improperly filed and was therefore returned to the Plaintiff unprocessed with instructions on how he could proceed. Plaintiff never filed a Step 2 grievance appeal of that grievance decision. Plaintiff then filed another grievance (Grievance No. BRCI-318-16) on March 20, 2016 (referring to an incident that had allegedly occurred on December 1, 2015), which was denied on June 15, 2016, with the grievance then being closed out after five days after Plaintiff failed to timely submit a Step 2 grievance appeal. In the interim, Plaintiff had also filed another Step 1 grievance form on May 1, 2016 (Grievance No. BRCI-429-16), which was also denied and returned to the Plaintiff on June 15, 2016. This grievance was then also closed out after Plaintiff failed to file a timely Step 2 grievance appeal. Plaintiff's last Step 1 grievance (BRCI-480-16) was filed on June 1, 2016. That grievance references his previous grievances, and was responded to on June 10, 2016 with the notation that those previous grievances had been forwarded to the office of Inspector General for review and that he would be notified of the decision on those grievances, which (the documentary exhibits show) he was. There is no evidence that Plaintiff ever filed a Step 2 grievance appeal of this grievance.
The fact that Plaintiff filed untimely Step 2 appeals did not serve to exhaust either of these two grievances. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) ["Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function without imposing some orderly structure on the course of its proceedings"].
This evidence does not support Plaintiff's assertion in his Complaint that prison officials "said they would do a police investigation numerous times but never happened". Nor has Plaintiff presented any evidence whatsoever to support the statement in his Complaint that the SCDC "held" his grievances and then told him he "was [too] late to complete". Cf. Poe v. Bryant, No. 12-3142, 2013 WL 6158023, at * 2 (D.S.C. Nov. 21, 2013)[Holding that defendants satisfied their burden of showing a failure to exhaust administrative remedies with exhibits detailing the grievance process and showing that Plaintiff failed to exhaust this remedy, and that Plaintiff's contradictory statements in response, including that the Defendant would not provide him a grievance or respond to his grievances, were not sufficient to avoid summary judgment in light of the contrary evidence]; Williams v. Reynolds, No. 12-138, 2013 WL 4522574 at * 4 (D.S.C. Aug. 27, 2013) [Noting that "even if Plaintiff did file a Step 1 grievance that was returned unprocessed, there is no evidence that Plaintiff filed a Step 2 grievance or otherwise appealed the decision not to process the Step 1 grievance."]; see also Sylvia Dev. Corp. v. Calvert County, MD., 48 F.3d 810, 818 (4th Cir. 1995)[explaining that while the party opposing summary judgment is entitled to the benefit of inferences that can be drawn from the evidence, "[p]ermissible inferences must still be within the range or reasonable probability" and that ["[w]hether an inference is reasonable cannot be decided in a vacuum; it must be considered in light of the competing inferences to the contrary" (internal quotation marks omitted)].
The Supreme Court has held that to satisfy the exhaustion requirement for filing a federal law suit, "a plaintiff must avail himself of all available administrative review". Malik v. Sligh, No. 11-1064, 2012 WL 3834850, at * 3 (D.S.C. Sept. 4, 2012) (emphasis in original), citing Booth v. Churner, 532 U.S. at 739. Applicable precedent also clearly provides that Plaintiff filing out of time Step 2 appeals does not satisfy the exhaustion requirement. Malik, 2012 WL 3834850, at * 4, citing Woodford v. Ngo, 548 U.S. at 90, 93. As correctly noted by the Defendants, Plaintiff cannot simply (and conclusorily) assert that he did everything he could to exhaust his administrative remedies, but that his failure to do so is the fault of the Defendants, provide no evidence to support those assertions, and survive summary judgment, "because if that is all it took to defeat evidence of a failure to exhaust, then this defense could never be successfully asserted by a Defendant". Defendants Reply Brief, p. 3. The undersigned agrees. See also Malik, 2012 WL 3834850, at * 5 [Noting that "plaintiff's self-serving contention [that he properly pursued his grievance remedies], especially in light of the uncontested evidence in the record to the contrary, is simply not enough to create a genuine dispute as to any material fact"]; see e.g., Riley v. Honeywell Technology Solutions, Inc., 323 F.Appx. 276, 278 (4th Cir. 2009) [Holding that plaintiff's "self-serving contentions" that he was treated unfairly "were properly discounted by the district court as having no viable evidentiary support"]; Nat'l Enters., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000) [Holding that a self-serving affidavit was insufficient to survive summary judgment]; King v. Flinn & Dreffein Eng'g Co., No. 09-4010, 2012 WL 3133677, at * 10 (W.D.Va. 2012) [Finding no genuine issue of material fact where only evidence was "uncorroborated and self-serving" testimony], citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
Therefore, as Plaintiff failed to exhaust his administrative remedies with respect to the claims asserted in this lawsuit, the Defendants are entitled to summary judgment in this case. See Hyde v. South Carolina Dep't of Mental Health, 442 S.E.2d 582, 583 (S.C. 1994) ["Where an adequate administrative remedy is available to determine a question of fact, one must pursue the administrative remedy or be precluded from seeking relief in the courts"]; Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) [Prisoner may not file a lawsuit before exhausting his administrative remedies]; Jones, 549 U.S. at 204 ["Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court"]; see Malik, 2012 WL 3834850, at * 4 (D.S.C. Sept. 4, 2012) ["A court may not consider, and must dismiss, unexhausted claims"]; Jordan v. Miami-Dade County, 439 F.Supp.2d 1237, 1241-1242 (S.D.Fla. 2006) [Remedies not exhausted where inmate did not appeal denial]; see also Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010) ["Exhaustion of administrative remedies under the PLRA is a question of law to be determined by the judge"].
Conclusion
Based on the foregoing, it is recommended that the Defendants' motion for summary judgment be granted, and that this case be dismissed, without prejudice. See Lee, 2016 WL 3176582 at * * 1-2 [dismissing case without prejudice due to prisoner's failure to exhaust administrative remedies].
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge August 20, 2019
Charleston, South Carolina
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).