Opinion
C. A. 8:22-cv-01856-HMH-KFM
11-02-2022
Justin Douglas O'Bryant, Plaintiff, v. R.J. Reynolds Tobacco Company, Inc., Lorillard Tobacco Company, Phillip Morris U.S.A., Inc., Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this action seeking damages from the defendants. Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on June 10, 2022 (doc. 1). On September 2, 2022, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 20). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 19-20). On October 14, 2022, the plaintiff's amended complaint was entered on the docket (doc. 25). However, because the plaintiff's amended complaint likewise fails to state a claim for relief, the undersigned recommends dismissal of the case.
ALLEGATIONS
The plaintiff's amended complaint lists eight causes of action, but only makes allegations with respect to four causes of action, all brought in this case based upon diversity jurisdiction (doc. 25). The claims include: (1) intentional fraud; (2) intentional fraudulent misrepresentation; (3) fraud in the inducement; and (4) negligent failure to warn (id.). Of note, for ease of reference the defendants will be referenced as follows: R.J. Reynolds Tobacco Company, Inc., (hereinafter “R.J.”), Lorillard Tobacco Company (hereinafter “Lorillard”), and Phillip Morris U.S.A., Inc. (hereinafter “PM”).
The plaintiff, who is approximately 35 years old, alleges that he began smoking in 2000 at the age of 12, but also that he began smoking at the age of 9 in 1997 (id. at 7, 26). He contends that he smoked Newport Light (Lorillard) and Marlboro Light (PM) cigarettes and that both of his parents smoked the same brand of cigarettes, and that the plaintiff “got his habits and history from” his parents when it came to smoking (id. at 8, 26).
The plaintiff's amended complaint, liberally construed, appears to assert ten total allegations of false representations made by the defendants (id. at 14-18). The plaintiff alleges that in 1996 the defendants opposed a Food and Drug Administration (“FDA”) report and indicated that nicotine was not a drug delivery device, denied any significant pharmacological effects of nicotine, denied targeting adolescents and youths in their advertisements, and denied a threshold amount of nicotine necessary for addiction (id. at 14). In the 1970s, the defendants indicated that they did not target youth or adolescents in advertisements and that the initiative targets were legal age youth adults from 18-25 years old (id. at 15). In 1996, PM issued a report indicating that youth smokers are critical customers for PM and that PM had the most youth and adolescent smokers (id. at 15-16). In 2004, PM issued an advertisement saying that it had not advertised that its low tar or low nicotine cigarettes were safer than its full flavor cigarettes, but indicated that “we believe that our low tar and less nicotine descriptor serves a useful purpose for our cigarette brands that we advertised” (doc. 1 at 16). In 2004, the American Psychological Association (“APA”) issued a report that the tobacco industry was effective at inducing youth and adolescent individuals to purchase the defendants' cigarettes (id. at 16-17). In 1988, the plaintiff alleges Lorillard issued an advertisement that Lorillard smokers were viewed as party goers and more fun loving than individuals smoking other brands of cigarettes (id. at 17). In 1999, Lorillard indicated that young smokers were important consumers (id.). In November 1999, Lorillard also reported that smokers were switching to low tar or less nicotine cigarettes because they were better for smokers and less likely to lead to serious health consequences (id. at 17-18). From 1999-2000, Lorillard said that the Federal Trade Commission's (“FTC”) tar and nicotine numbers did not need to be explained to smokers (id. at 18). In 2001, Lorillard issued a statement that as an alternative to quitting smokers could switch to a low tar and lesser in nicotine cigarette as a safer and healthier option than full flavor cigarettes (id.).
The plaintiff also alleges that he is not barred by the statute of limitations because he just discovered his claim in April 2022 as well as that he is eligible for equitable tolling based upon the defendants' fraudulent actions (id. at 5-6, 25-37). The plaintiff's first cause of action against the defendants is fraud (id. at 40-47). His second cause of action against the defendants is intentional fraudulent representation (id. at 47-55). His third cause of action is fraud in the inducement (id. at 55-57). His fourth cause of action is negligent failure to warn (id. at 58-59).
The plaintiff alleges a litany of injuries, including chronic coughing, shortness of breath, throat irritation, throat scratching, difficulty swallowing, tooth loss, headaches, chest pains, increase of phlegm, blurry vision, and loss of enjoyment of life, among other things (id. at 24, 39). For relief, the plaintiff seeks money damages (id. at 39, 59-62).
APPLICABLE LAW & ANALYSIS
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
“The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
There are two types of federal jurisdiction: federal question jurisdiction and diversity jurisdiction. Federal question jurisdiction arises when the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Diversity jurisdiction is conferred upon the Court when a suit is between citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). Here, the plaintiff alleges only diversity jurisdiction with respect to his state law claims because the defendants are citizens of different states and the amount in controversy exceeds $75,000.00 (doc. 25 at 7). A federal court exercising diversity jurisdiction applies state substantive law. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). As such, the plaintiff's state law claims, brought in this court based upon diversity jurisdiction, will be evaluated based upon South Carolina substantive law.
As an initial matter, although there are three named defendants, there are only two parties-in-interest in the instant matter (R.J. and PM) because Lorillard has merged out of existence to become part of defendant R.J. (see doc. 1 at 8-10).
Intentional Fraud and Fraudulent Misrepresentation Claims
The plaintiff's fraud and fraudulent misrepresentation claims are subject to summary dismissal. The elements a plaintiff must allege for the claims are: (1) a representation; (2) its falsity; (3) its materiality; (4) knowledge of its falsity or a reckless disregard for its truth or falsity; (5) intent that the plaintiff act upon the representation; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury. See McLaughlin v. Williams, 665 S.E.2d 667, 670 (S.C. Ct. App. 2008). Under Rule 9 of the Federal Rules of Civil Procedure, fraud claims have a higher pleading standard and must be stated with particularity. Fed.R.Civ.P. 9. Here, as set forth in more detail with respect to each of the plaintiff's allegations of fraud/fraudulent misrepresentations, the plaintiff's amended complaint largely fails to identify false statements and contains only vague and conclusory allegations consisting of nothing beyond legal conclusions of alleged fraudulent behavior. See Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019) (noting that in evaluating a complaint's allegations, the court “need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments” (internal citations and quotation marks omitted)).
As an initial matter, the plaintiff's verified allegations in his amended complaint appear to concede that he did not begin smoking based upon advertisements or statements by the defendants; instead, he began smoking because his parents smoked. The plaintiff's amended complaint notes, verbatim: “both of my parents smoked Defendants' Marlboro and Newport cigarette brands, “where,” [the p]laintiff got his habits and history from” (doc. 25 at 8). As such, the plaintiff has not alleged the seventh element of fraud, that he relied on the truth of Representations 1 through 10, in deciding to begin or continue smoking, because he has alleged instead that he began smoking because his parents smoked.
Additionally, of note, the health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's fraud and fraudulent misrepresentation claims because he has not alleged how he relied on Representations 1 through 10 instead of warnings found on each package of cigarettes he purchased. The plaintiff attempts to circumvent the existence of these warnings by alleging that he “tried to read very little” and did not look at the cigarette labels; however, he alleges that he did not leave school until the ninth grade, would have others help him read, as well as that he was able to go to the store and purchase Marlboro or Newport cigarettes as well as that he was aware whether he was buying “light” or “regular” Marlboro or Newport cigarettes (doc. 25 at 8). Further, courts have recognized that smoking was well-known as dangerous by 1978, well before the plaintiff began smoking in 1997 or 2000. See White ex. rel. White v. R. J. Reynolds Tobacco Co., 109 F.Supp.2d 424, 434-35 (D. Md. 2000); see also Brown v. R.J. Reynolds Tobacco Co., 38 F.4th 1313, 1319 (11th Cir. 2022) (recognizing that PM publicly acknowledged cigarettes as addictive and able to cause disease in 1999); Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996), cert. denied519 U.S. 930 (1996) (noting that “the dangers of cigarettes have long been known to the community”). In light of the foregoing, the plaintiff has not plausibly alleged that he was unable to understand the health warnings placed on cigarettes, meaning that he has not alleged the sixth element of fraud, his ignorance of the Representations' falsity, because there were health warnings on each package of cigarettes he purchased. As such, the plaintiff's fraud and fraudulent misrepresentation claims are subject to summary dismissal based upon the warnings on cigarette packages as well as his allegations that he began smoking because of his parents. Nevertheless, the undersigned has also addressed each Representation individually to note additional specific pleading deficiencies with respect to each Representation.
As outlined by the Centers for Disease Control and Prevention, after a report by the Surgeon General in 1964, Congress passed the Federal Cigarette Labeling and Advertising Act of 1965 and later the Public Health Cigarette Smoking Act of 1969, which required, among other things, health warnings on cigarette packages. See History of the Surgeon General's Reports on Smoking and Health, Centers for Disease Control and Prevention, https://www.cdc.gov/tobacco/sgr/history/index.htm (last visited November 1, 2022).
In his amended complaint, the plaintiff alleges he began smoking at age 12, which would be around 2000 (doc. 25 at 7), but also in passing (for the first time in his amended complaint) that he began smoking at age 9, which would be around 1997 (id. at 26).
Representation 1: In 1996, the defendants filed an opposition to an FDA report and asserted that nicotine was not a drug delivery device, denied any significant pharmacological effects of nicotine, denied targeting adolescents and youths in their advertisements, and denied a threshold amount of nicotine necessary for addiction (doc. 25 at 14).
Representation 1 does not state a claim for relief. As an initial matter, the plaintiff's vague allegations that he “heard” about this report from having various publications read to him fails to plausibly allege how he was aware of the FDA report itself, its contents, or the responses submitted by the defendants - as he has not alleged what was included in the various publications he was “read” from. Further, Representation 1 was made when the plaintiff was eight (and at least a year (if not four years) before the plaintiff began smoking) and the plaintiff has not alleged how he relied on this report in deciding to begin smoking one year or four years later. Moreover, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, or the seventh element of fraud that the plaintiff relied on the truth of Representation 1 in deciding to begin smoking. Additionally, as noted above in more detail, health warnings placed on cigarette packaging, beginning in 1965, further undermine the plaintiff's claim regarding Representation 1 because he has not alleged how he relied on Representation 1 instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 1.
Representation 2: In the 1970's, the defendants indicated that they did not target youth or adolescents in advertisements, the initiative targets were legal age youth adults from 18-25 years old (doc. 1 at 15).
The plaintiff has not alleged a claim with respect to Representation 2. First, Representation 2 was made almost twenty years before the plaintiff was born, and the plaintiff has not alleged how he was aware of this statement from before his birth. Further, because Representation 2 was made almost twenty prior to the plaintiff's birth, he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, the seventh element of fraud that the plaintiff relied on the truth of Representation 2, or the eighth element of fraud that the plaintiff had a right to rely on Representation 2 in deciding to start smoking. Indeed, even if the plaintiff had been alive, he could not allege that the defendants intended for him to act on this statement because he was not between the ages of 18 and 25. Further, the plaintiff has not plausibly alleged the falsity of this statement. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 2.
Representation 3: In 1996, PM issued a report indicating that youth smokers are critical customers for PM and that
PM had the most youth and adolescent smokers (doc. 25 at 15-16).
The plaintiff has not alleged a claim with respect to Representation 3. First, the plaintiff has not alleged that Representation 3 was false. Further, Representation 3 was made when the plaintiff was eight (and at least a year (if not four years) before the plaintiff began smoking) and the plaintiff has not alleged how he relied on this statement in deciding to begin smoking one year or four years later. Moreover, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, or the seventh element of fraud that the plaintiff relied on the truth of Representation 3 in deciding to begin smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 3.
Representation 4: In 2004 PM issued an advertisement that it had not advertised low tar and less nicotine yields in PM cigarettes were safe or safer than full flavor brands, but noted that PM believed the descriptor served a useful purpose for the brands PM advertised (doc. 25 at 16).
The plaintiff has not alleged a claim with respect to Representation 4. First, the plaintiff has not plausibly alleged that Representation 4 was false. Indeed, Representation 4 notes that PM “believes” that the low tar or less nicotine descriptors were “useful”, but not that they had a specific purpose. As such, the plaintiff has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on Representation 4 or the seventh element of fraud that the plaintiff relied on the truth of Representation 4 to continue smoking. Additionally, as noted above in more detail, health warnings placed on cigarette packaging, beginning in 1965, further undermine the plaintiff's claim regarding Representation 4 because he has not alleged how he relied on Representation 4 instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 4.
Representation 5: In 2004, the APA issued a report that the defendants' advertisements were effective at influencing youth and adolescents to smoke (doc. 25 at 16-17).
The plaintiff has not alleged a claim with respect to Representation 5. First, the plaintiff has not plausibly alleged that Representation 5 was false. Further, the plaintiff has not plausibly alleged how he was aware of a report from the APA. Additionally, Representation 5 was not made by the defendants; thus, it cannot form the basis of a fraud claim against them. Moreover, the plaintiff cannot bring a fraud claim based upon the advertisements being targeted toward youth or adolescents because targeting advertisements in and of itself is not unlawful. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 5.
Representation 6: In 1988, Lorillard issued an advertisement that Lorillard smokers were viewed as party goers and more fun-loving than other smokers (doc. 25 at 17).
The plaintiff has not alleged a claim with respect to Representation 6. First, the plaintiff has not alleged that Representation 6 was false. Additionally, the plaintiff has failed to allege how he was aware of this advertisement that came out the year he was born - and many years before the plaintiff began smoking, meaning he has not plausibly alleged the fifth element of fraud that the defendants intended for him to act on the alleged misrepresentation, or the seventh element of fraud that the plaintiff relied on the truth of Representation 6 in deciding to begin smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 6.
Representation 7: In 1999, Lorillard indicated that young smokers are important consumers (doc. 25 at 17).
The plaintiff has not alleged a claim with respect to Representation 7. First, the plaintiff has not alleged that Representation 7 was false. Additionally, by this time, the plaintiff had either been smoking for two years or did not start smoking for another year, meaning that the plaintiff has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 7 in deciding to begin or continue smoking. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 7.
Representation 8: In November 1999, Lorillard issued a statement that smokers were switching to low tar and lesser in nicotine Newport cigarettes and that they were safer, healthier, milder, less irritating, and less likely to cause serious health consequences than other brands (doc. 25 at 17-18).
The plaintiff has not alleged a claim with respect to Representation 8. First, the plaintiff has not alleged that Representation 8 was false. Additionally, by this time, the plaintiff had either been smoking for two years or did not start smoking for another year, meaning that the plaintiff has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 8 in deciding to begin or continue smoking. Additionally, as noted above in more detail, health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's claim regarding Representation 8 because he has not alleged how he relied on Representation 8 instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 8.
Representation 9: From 1999-2000, Lorillard issued a statement that the FTC's tar and nicotine numbers did not need to be explained to smokers (doc. 25 at 18).has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 9.
Representation 10: In 2001, Lorillard issued a statement that as an alternative to quitting smokers could switch to a low tar and lesser in nicotine cigarette as a safer and healthier option than full flavor cigarettes (doc. 25 at 18).
The plaintiff has not alleged a claim with respect to Representation 10. First, the plaintiff has not alleged that Representation 10 was false. Additionally, the plaintiff has not alleged that he thought about quitting smoking and instead relied on Representation 10 to change what brand of cigarettes he was smoking, meaning that the plaintiff has not plausibly alleged the seventh element of fraud that the plaintiff relied on the truth of Representation 10 in deciding to continue smoking. Additionally, as noted above in more detail, health warnings placed on cigarette packaging beginning in 1965 further undermine the plaintiff's claim regarding Representation 10 because he has not alleged how he relied on Representation 10 instead of warnings found on each package of cigarettes he purchased. As such, the plaintiff has failed to state a fraud or fraudulent misrepresentation claim with respect to Representation 10.
Fraud in the Inducement Claim
The plaintiff's fraud in the inducement claim is also subject to summary dismissal. To plausibly allege fraud in the inducement, a plaintiff must show fraud (as outlined above) and three additional elements: (1) that the fraudfeasor made a false representation relating to a present or pre-existing fact; (2) that the fraudfeasor intended to defraud the plaintiff; and (3) that the plaintiff had the right to rely on the statement made. Moseley v. All Things Possible, Inc., 694 S.E.2d 43, 45 (S.C. Ct. App. 2010) (internal citations omitted). As noted above, the 10 representations do not satisfy the heightened fraud pleading standard. As noted with respect to representations 2, 3, 4, 5, 6, 7, 8, and 9, there is no indication that these statements were false or involved a present or preexisting fact. Additionally, it is unclear how representations 2 and 6 could have been intended to defraud the plaintiff since he was not yet born or less than one year old. Further, the plaintiff did not start smoking until 1997 or 2000, at which time there were several warnings from the surgeon general on cigarette packets about the harms of smoking, which the United States Supreme Court have found to bear on a party's right to bring a claim asserting fraudulent advertisements relating to cigarettes. See Altria v. Good, 555 U.S. 70, 82-83 (2008). Moreover, as recognized by the United States District Court for the District of Maryland, smoking was well-known as dangerous by 1978, well before the plaintiff was born or began smoking. See White, 109 F.Supp.2d at 434-35. Likewise, the Fifth Circuit Court of Appeals, in a case the United States Supreme Court declined to review, recognized in 1996 that “the dangers of cigarettes have long been known to the community,” further undermining the plaintiff's allegations. Allgood, 80 F.3d at 172. As such, the plaintiff's amended complaint fails to allege a fraud in the inducement claim.
Negligent Failure to Warn
The plaintiff's negligent failure to warn claim also fails to state a claim for relief. The elements of a negligent failure to warn claim are (1) the defendant knew or should have known that the product was likely dangerous for its intended use; (2) there was no reason to believe that the user would realize the potential danger; and (3) the defendant failed to exercise reasonable care to inform of the dangerous condition. See Livingston v. Noland Corp., 362 S.E.2d 16, 18-19 (S.C. 1987). Here, the plaintiff cannot plausibly allege the second element because health warnings were placed on cigarette packaging beginning in 1965 warning that smoking was dangerous; thus, the plaintiff knew or should have known the potential danger to smoking. As outlined in more detail above, the plaintiff's allegations that he could not read the cigarette warnings on the labels when buying cigarettes because he “tried to read very little” and that his reading was “very poor” are inconsistent with his allegations that he knew what brands of cigarettes he was purchasing (and whether they were “light” or “regular”) (doc. 25 at 8). Indeed, courts have recognized that smoking was well-known as dangerous by 1978, well before the plaintiff began smoking in 1997 or 2000. See White, 109 F.Supp.2d at 434-35; see also Allgood, 80 F.3d at 172 (noting that “the dangers of cigarettes have long been known to the community”). Further, the plaintiff has failed to allege that if he had been further warned about the dangers of smoking he would have changed his mind regarding smoking. See Allen v. Long Mfg. N.C., Inc., 505 S.E.2d 354, 359 (S.C. Ct. App. 1998). As such, the plaintiff's negligent failure to warn claim is subject to dismissal.
Abandoned Claims
It appears that the plaintiff has abandoned several of his claims against the defendants as well as several of his allegations of fraud because they are not included in the plaintiff's amended complaint (see doc. 25). For example, although the plaintiff's amended complaint lists battery, negligence/gross negligence, and civil conspiracy to commit fraud, his amended complaint contains no allegations relating to these causes of action (id.). Likewise, the plaintiff's amended complaint omits reference to his claim for radio, television, and communication fraud as well as almost all of his original allegations of fraudulent representations (id.). As such, it appears that the plaintiff has abandoned the above claims/allegations. The plaintiff was warned that an amended complaint replaces the complaint and “should be complete in itself (doc. 20 at 19-20) (citing Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)). As such, the undersigned recommends dismissal of the plaintiff's abandoned claims and allegations of fraud. To the extent the plaintiff did not intend to abandon his claims against these defendants, for the reasons set forth in the court's prior order, his claims against them would still be subject to summary dismissal (see doc. 20).
RECOMMENDATION
By order issued September 2, 2022, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment. Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the order dated September 2, 2022 (doc. 20). Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, 49 F.4th 790 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committees note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).