8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`DISTRICT OF SOUTH CAROLINA
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`) C/A No. 8:08-4049-GRA-BHH
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`))))
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` REPORT AND
`RECOMMENDATION
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`)
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`)))))))))))))))
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`Oscar Lee Sykes, Jr., #310285,
`former # 138335,
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`Plaintiff;
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`vs.
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`Michael Frank; Mark Sanford; Andre Bauer; Tom
`Fox; Susan Safford; Anna Cunningham; Marian H.
`Lee; Edgar Lloyd Willcox, II; Robert T. King; Larry
`W. Propes; Sharon Welch Meyer; Thomas E.
`Rogers, III; R. Bryan Harwell; Karen J. Williams;
`Dennis W. Shedd; Diana G. Motz; Williams K.
`Suter; Leoniads Ralph Mecham; John Doe,
`Attorney General; Henry E. Brown Jr; Richard B.
`Cheney; George W. Bush, Jr.; Horry County, South
`Carolina. Names of all the people the suit is...
`against individually, and in their official capacities,
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`Defendants.
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`The plaintiff, Oscar Lee Sykes, Jr. (“Plaintiff”), proceeding pro se, brings this action
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`pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate at McCormick Correctional Institution,
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`a facility of the South Carolina Department of Corrections (SCDC), and files this action in
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`forma pauperis under 28 U.S.C. § 1915. The plaintiff sues the Defendants in relation to his
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`prior civil rights lawsuit in Sykes v. Fox, No. 4:04-2329-RBH (D.S.C. Sept. 28, 2006). The
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`plaintiff claims he was entitled to a default judgment in the prior case and sues the lawyers,
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`judges, court clerks, and appellate judges involved in the prior case. He also sues various
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`government officials for not providing “redress” when the plaintiff contacted them concerning
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`the outcome of his prior case. Plaintiff seeks declaratory and injunctive relief, as well as
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` Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)(d),
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`D.S.C., the undersigned is authorized to review such complaints for relief and submit
`findings and recommendations to the District Court.
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`8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 2 of 14
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`monetary damages. The complaint should be dismissed for failure to state a claim upon
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`which relief may be granted. Because many of the defendants have immunity and the case
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`is also frivolous, a strike for purposes of 28 U.S.C. § 1915(g) is recommended.
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`PRO SE and IN FORMA PAUPERIS REVIEW
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`Under established local procedure in this judicial district, a careful review has been
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`made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915; 28
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`U.S.C. § 1915A; and the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321
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`(1996). This review has been conducted in light of the following precedents: Denton v.
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`Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v.
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`Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4 Cir.
`th
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`1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4 Cir. 1983).
`th
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`The complaint herein has been filed pursuant to 28 U.S.C. § 1915, which permits an
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`indigent litigant to commence an action in federal court without prepaying the administrative
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`costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the
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`statute allows a district court to dismiss the case upon a finding that the action is “frivolous
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`or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief
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`against a defendant who is immune from such relief.” § 1915(e)(2)(B)(i-iii).
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`A finding of frivolity can be made where the complaint “lacks an arguable basis either
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`in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a
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`claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams,
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`490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5 Cir. 1995).
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`This Court is required to liberally construe pro se documents, Estelle v. Gamble, 429
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`U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys,
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`8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 3 of 14
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`Hughes v. Rowe, 449 U.S. 9 (1980) (per curiam). Even under this less stringent standard,
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`however, the pro se complaint is subject to summary dismissal. The mandated liberal
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`construction afforded to pro se pleadings means that if the court can reasonably read the
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`pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a
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`district court may not rewrite a petition to include claims that were never presented, Barnett
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`v. Hargett, 174 F.3d 1128, 1133 (10 Cir. 1999), or construct the plaintiff's legal arguments
`th
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`for him, Small v. Endicott, 998 F.2d 411, 417-18 (7 Cir. 1993), or “conjure up questions never
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`squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4 Cir.
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`1985). The requirement of liberal construction does not mean that the court can ignore a
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`clear failure in the pleading to allege facts which set forth a claim currently cognizable in a
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`federal district court. Weller v. Dep’t of Soc. Servs., 901 F.2d 387, (4th Cir. 1990).
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`BACKGROUND
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`The complaint is based on allegations that the Defendants participated in a “federal
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`civil railroad conspiracy” to deprive Plaintiff of his alleged right to a default judgment in a prior
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`case, Sykes v. Horry County, No. 4:04-2329-RBH (D.S.C. Sept. 28, 2006), affirmed on
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`appeal, No. 06-7763 (4 Cir. March 2, 2007), rehearing denied July 11, 2007. Complaint at
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`7-12. In Plaintiff’s prior case, the complaint was filed July 26, 2004, and an order directing
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`service of process was filed August 24, 2004. Service was accomplished and an answer for
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`Defendants Safford and Horry County were due September 21, 2004. Service on Defendants
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`Cunningham & Fox was accomplished and an answer was due October 5, 2004. All of the
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`defendants in that case filed an Answer on December 21, 2004. Plaintiff did not file an
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`affidavit or apply to the court for a default judgment as required by Rule 55 of the Federal
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`Rules of Civil Procedure. Plaintiff did not raise the issue of default in his prior case. After
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`8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 4 of 14
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`cross motions for summary judgement, a final judgment in the defendants favor was entered
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`on September 29, 2006. Plaintiff appealed the final judgment and the United States Court
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`of Appeals for the Fourth Circuit affirmed the district court decision and denied Plaintiff’s
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`subsequent petition for rehearing en banc.
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`DISCUSSION
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`Plaintiff files this lawsuit pursuant to 42 U.S.C. § 1983. Complaint at 3. A legal action
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`under § 1983 allows “a party who has been deprived of a federal right under the color of state
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`law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707
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`(1999). The civil rights statute 42 U.S.C. § 1983 “‘is not itself a source of substantive rights,’
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`but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright
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`v. Oliver, 510 U.S. 266, 271 (1994), quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3
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`(1979). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that
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`a right secured by the Constitution or laws of the United States was violated, and (2) that the
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`alleged violation was committed by a person acting under the color of state law. West v.
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`Atkins, 487 U.S. 42, 48 (1988).
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`Failure To State A Claim
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`Insufficient Allegations
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`A complaint is required by Federal Rule of Civil Procedure 8(a)(2) to state “a short and
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`plain statement of the claim showing that the pleader is entitled to relief.” The United States
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`Supreme Court has held that “[s]pecific facts are not necessary; the statement need only give
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`the defendant fair notice of what the claim is and the grounds upon which it rests.” Erickson
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`v. Pardus, 551 U.S. 89, 91 (2007). The complaint in this case recites the actions Plaintiff took
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`in appealing and protesting the outcome of his prior case, as well as makes conclusory
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`8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 5 of 14
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`allegations of violation of the Fifth and Fourteenth Amendments in a “federal civil railroad
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`conspiracy” against Plaintiff. Complaint at 7-12.
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`Plaintiff complains that he did not receive the result in his prior case that he believes
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`he was entitled to by law, specifically a default judgment. Complaint at 7. Plaintiff appealed
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`the district court’s judgment to the Court of Appeals for the Fourth Circuit, and he complains
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`that the result in the appellate process was also part of the “federal civil railroad conspiracy”
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`because the result was not in his favor. Complaint at 8-9. Similarly, Plaintiff complains that
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`the Clerk of Court of the United States Supreme Court issued a denial of his petition for writ
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`of certiorari which was a “furtherance of this civil railroad conspiracy.” Complaint at 9.
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`Plaintiff also claims violation of constitutional rights under the Fifth and Fourteenth
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`Amendment because several government officials were “unresponsive to this matter of civil
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`railroad conspiracy and obstruction of justice.” Complaint at 8, 9-12. The complaint also
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`contains one sentence alleging Defendant Frank and another individual not a party to the
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`case (Oscar Lee Sykes Sr.) “orchestrated an attempted murder assault upon the plaintiff
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`(Sykes Jr.) by having the plaintiff (Sykes Jr.) stabbed 5 times within his neck and back areas
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`of his body, by two unknown inmates.” Complaint at 8.
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`In Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007), the
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`Supreme Court states that a complaint requires pleading “enough facts to state a claim to
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`relief that is plausible on its face.” Twombley further instructs “a plaintiff’s obligation to
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`provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions.”
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`Id. at 1964-65. The complaint’s conclusion that a conspiracy existed among the Defendants
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`is not supported by factual allegations. The complaint does not claim a formal or tacit
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`agreement or meeting of the minds of the Defendants which indicates a group plan to harm
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`8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 6 of 14
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`Plaintiff. Although the Court is bound to liberally construe his pro se complaint, Plaintiff must
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`do more than make mere conclusory statements to support his claim. Adams v. Rice, 40 F.3d
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`72 (4 Cir. 1994) (affirming district court’s dismissal of plaintiff’s suit as frivolous where
`th
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`allegation was conclusory and nonsensical on its face); White v. White, 886 F.2d 721, 723
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`(4 Cir. 1989) (where plaintiff’s complaint “failed to contain any factual allegations tending to
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`support his bare assertion”). The complaint fails to allege facts to support a claim of
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`conspiracy. Plaintiff’s claim that his constitutional rights have been violated through a
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`conspiracy, without supporting factual allegations, is not sufficient to state a claim and is also
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`frivolous.
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`Constitutional Rights
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`Plaintiff claims his rights under the Fifth and Fourteenth Amendments to the United
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`States Constitution have been violated by the Defendants. Complaint at 3, 12. The
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`allegations in the complaint claim that the Defendants denied Plaintiff the “federal relief of
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`which is due” Plaintiff “after the Defendants (Horry County, South Carolina et. al.) grossly
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`defaulted the judgment in that case.” Complaint at 7. Liberally construed, the complaint
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`could be attempting to state a procedural due process claim based on the Fifth and
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`Fourteenth Amendments’ guarantee of “due process of law.” The complaint, however, fails
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`to allege facts that show a violation by the Defendants of Plaintiff’s constitutional rights under
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`the Fifth and Fourteenth Amendments.
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`The due process protection of the Fifth and Fourteenth Amendments has a procedural
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`due process component. See United States v. Salerno, 481 U.S. 739, 746 (1987). The
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`procedural due process component precludes the government from depriving a person of life,
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`liberty, or property in an unfair manner. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
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`Thus, due process claims must be supported by an underlying property or liberty interest.
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`The facts alleged by Plaintiff do not implicate a constitutional right that is protected by
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`procedural due process. Plaintiff does not have a constitutional right to a specific outcome
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`in a civil lawsuit, including a default judgment. The “fundamental requirement” of procedural
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`due process is “the opportunity to be heard ‘at a meaningful time and in a meaningful
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`manner.’” Id. at 333, quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Plaintiff was
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`allowed by Rule 55 of the Federal Rules of Procedure to file a request for a default judgment,
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`but failed to do so. Plaintiff was provided procedural due process through “the opportunity
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`to be heard” in his prior case, including the appellate process in that case.
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`Plaintiff also claims violation of constitutional rights under the Fifth and Fourteenth
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`Amendments because several government officials were “unresponsive to this matter of civil
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`railroad conspiracy and obstruction of justice.” Complaint at 8, 9-12. Again, Plaintiff fails to
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`implicate an underlying property or liberty interest that has possibly been violated. Failure to
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`respond to mail, even by a government official, is not a constitutional violation. The complaint
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`fails to state a claim under § 1983 because Plaintiff does not make factual allegations to
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`implicate the violation of a right secured by the Constitution or laws of the United States.
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`Lack of State Action
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`As well as failing to meet the § 1983 requirement for violation of a constitutional right,
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`the complaint fails to state a claim against several defendants because they do not act under
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`color of state law. To act under color of state law for purposes of § 1983, an individual’s
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`action that allegedly causes the deprivation of a federal right must be “fairly attributable to the
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`state.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) quoting Lugar v.
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`Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). State action is required because “most
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`8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 8 of 14
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`rights secured by the Constitution are protected only against infringement by governments.”
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`Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 156 (1978).
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`Defendants Lee, Willcox, and King are private attorneys with the law firm retained by
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`the defendants in the prior case, Sykes v. Fox, No. 4:04-2329-RBH (D.S.C. Sept. 28, 2006).
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`An private attorney does not act under color of state law, which is a jurisdictional prerequisite
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`for any civil action brought under 42 U.S.C. § 1983. See Deas v. Potts, 547 F.2d 800 (4th Cir.
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`1976). Similarly, the complaint names Defendants Propes, Meyer, Suter, Mecham, Brown,
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`Cheney and Bush, who are officials or employees of the federal government. The complaint
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`also names as a defendant “John Doe,” which Plaintiff identifies as “United States Depart. of
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`Justice, Office of the United States Attorney General.” These defendants did not act under
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`color of state law because their actions that allegedly violated Plaintiff’s rights under the Fifth
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`and Fourteenth Amendments cannot be “fairly attributable to the state.” American Mfrs. Mut.
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`Ins. Co., 526 U.S. at 50. Because Plaintiff's allegations do not establish that Defendants Lee,
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`Willcox, King, Propes, Meyer, Suter, Mecham, Brown, Cheney, Bush and Doe acted under
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`color of state law, Plaintiff cannot maintain a § 1983 action against them.
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`Local Government Liability
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`The complaint sues Horry County, a local government within the State of South
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`Carolina. A local government, such as a city or county, can be liable under § 1983, but a
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`county’s liability is based on execution of a governmental policy or custom. Monell v. Dep't
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` The United States Supreme Court in Bivens v. Six Unknown Named Narcotic Agents,
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`403 U.S. 388 (1971), created a remedy against federal officers acting under color of
`federal law, which was analogous to the § 1983 action against state officials. The
`complaint in this case, however, fails to make factual allegations against any of the federal
`officials or employees that implicate the violation of Plaintiff’s Fifth and Fourteenth
`Amendment rights by any Defendants, as discussed above.
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`8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 9 of 14
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`of Social Servs., 436 U.S. 658 (1978). A county may not be held liable under § 1983 solely
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`because it employs the individual that violated a plaintiff’s federal rights; rather, a plaintiff must
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`identify a municipal "policy" or "custom" that caused the plaintiff's injury. Board of County
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`Commissioners v. Brown, 520 U.S. 397 (1997). Plaintiff fails to identify a policy or custom of
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`Horry County which caused his federal rights to be violated, thus he fails to state a claim
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`against the Defendant Horry County.
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`Immunity
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`Many of the Defendants in this case have immunity from liability under § 1983.
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`Immunity presents a threshold question which should be resolved before discovery is even
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`allowed. Siegert v. Gilley, 500 U.S. 226 (1991). Absolute immunity "is an immunity from suit
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`rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
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`Official Capacity Immunity
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`The complaint states that the Defendants are being sued “individually, and in their
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`official capacities.” Complaint at 1. The “real party in interest in an official-capacity” lawsuit
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`is the “governmental entity and not the named official.” Hafer v. Melo, 502 U.S. 21, 25 (1991).
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`Therefore, lawsuits against state officials in their official capacity are actually suits against the
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`State. Kentucky v. Graham, 473 U.S. 159, 165 (1985). States are immune from liability
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`under § 1983 pursuant to the Eleventh Amendment. Puerto Rico Aqueduct & Sewer Auth.
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`v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) (absent waiver of Eleventh Amendment
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`immunity, state is not subject to suit in federal court); see also Will v. Michigan Dep't of State
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`Police, 491 U.S. 58 (1989) (neither the state, nor a state official acting in an official capacity,
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`are "persons" within § 1983). Plaintiff cannot maintain a § 1983 action against the
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`Defendants acting under color of state law in their official capacities.
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`8:08-cv-04049-GRA Date Filed 02/09/09 Entry Number 11 Page 10 of 14
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`Judicial Immunity
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`The complaint makes allegations against judges who were involved in Plaintiff’s prior
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`case. The judges, Defendants Williams, Motz, Shedd, Harwell and Rogers, have absolute
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`judicial immunity with respect to their judicial acts in relation to Plaintiff’s prior case. See
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`Mireles v. Waco, 502 U.S. 9 (1991); Stump v. Sparkman, 435 U.S. 349, 351-364 (1978);
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`Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987). "It has long been settled that a judge
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`is absolutely immune from a claim for damages arising out of his judicial actions." Chu v.
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`Griffith, 771 F.2d 79, 81 (4th Cir. 1985). The complaint does not allege that the judges acted
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`outside of their judicial capacity or absent all jurisdiction. See Mireles v. Waco, 502 U.S. at
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`12. Judges have absolute immunity in their judicial acts and judicial immunity is a threshold
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`question which requires summary dismissal. Siegert v. Gilley, 500 U.S. 226 (1991); and
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`Mitchell v. Forsyth, 472 U.S. at 526.
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`Quasi-judicial Immunity
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`The complaint sues the Clerk of Court for the United States Supreme Court and the
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`Clerk of Court, as well as a deputy clerk, of the United States District Court for the District of
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`South Carolina. Defendants Suter, Propes and Meyers are entitled to absolute quasi-judicial
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`immunity. The doctrine of absolute quasi-judicial immunity has been adopted and made
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`applicable to court support personnel because of "the 'danger that disappointed litigants,
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`blocked by the doctrine of absolute immunity from suing the judge directly, will vent their wrath
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`on clerks, court reporters, and other judicial adjuncts[.]'" Kincaid v. Vail, 969 F.2d 594, 601
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`(7th Cir. 1992), quoting Scruggs v. Moellering, 870 F.2d 376, 377 (7 Cir. 1989); see also
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`Ashbrook v. Hoffman, 617 F.2d 474, 476 (7th Cir. 1980)(collecting cases on immunity of court
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`support personnel); Cf. Pink v. Lester, 52 F.3d 73 (4th Cir.1995) (overruling McCray v.
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`Maryland, 456 F.2d 1 (4th Cir. 1972), which held that clerks of court might be held liable for
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`negligent conduct in the filing of prisoner pleadings).
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`The complaint alleges that Defendants Propes and Meyer failed to enter a default
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`judgment against the defendants, or notify Plaintiff of the defendants’ default, in Plaintiff’s
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`prior district court case. Complaint at 7. Under Rule 55 of the Federal Rules of Civil
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`Procedure, the Clerk of Court may enter default judgment in a case only “on the plaintiff’s
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`request, with an affidavit showing the amount due” or by order of the Court. The Clerk of
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`Court for the United States Supreme Court is sued for denying Plaintiff’s petition for writ of
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`certiorari. Complaint at 9. Because Plaintiff’s claims are based on the manner in which
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`Defendants Propes, Meyer and Suter perform official duties, these Defendants are protected
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`by the doctrine of quasi-judicial immunity. See, e.g., Lundahl v. Zimmer, 296 F.3d 936, 939
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`(10 Cir. 2002); Smith v. Erickson, 884 F.2d 1108, 1111 (8 Cir. 1989)(filing of documents
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`th
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`by clerk is integral part of judicial process and protected by judicial immunity); Mullis v. U.S.
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`Bankr. Ct., 828 F.2d 1385, 1390 (9 Cir. 1987)(bankruptcy clerks entitled to judicial immunity
`th
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`for refusing to accept amended petitions). Because Defendants Suter, Propes and Meyer
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`have quasi-judicial immunity, Plaintiff cannot maintain a § 1983 action against them.
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`Executive and Legislative Immunity
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`The complaint sues the former President and Vice President of the United States,
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`officials in the executive branch of the federal government. Plaintiff also sues Defendant
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`Henry E. Brown, Jr., a legislator in the United States House of Representatives. No
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`allegations in the complaint indicate any personal involvement of these officials in Plaintiff’s
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`prior case, and it is clear the Plaintiff complained to these Defendants about the outcome of
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`his prior case based on their official government positions. Plaintiff alleges these Defendants
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`violated his constitutional rights by failing to respond or “redress” his complaints concerning
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`the outcome of his prior district court case. Complaint at 8, 10-11.
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`The United States Supreme Court has recognized the defense of “absolute immunity”
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`for “officials whose special functions or constitutional status requires complete protection from
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`suit.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Included in this list are “legislators, in
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`their legislative functions . . . judges, in their judicial functions . . . and the President of the
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`United States.” The present action cannot proceed against Defendants Bush and Cheney
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`because of the complete immunity enjoyed by the President and Vice-President of United
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`States in performing the duties of their respective offices. See Nixon v. Fitzgerald, 457 U.S.
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`731 (1982). Under the Speech and Debate Clause of the United States Constitution (U.S.
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`CONST. art I, § 6) members of the United States Congress enjoy a comparable immunity.
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`As the United States Supreme Court held in Dombrowski v. Eastland, 387 U.S. 82 (1967):
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`“legislators engaged ‘in the sphere of legitimate legislative activity’ should be protected not
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`only from the consequences of litigation’s results but also from the burden of defending
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`themselves.” 387 U.S. at 85 (citations omitted). Because Plaintiff names these Defendants
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`for alleged failure to take actions through their official positions, Defendants Bush, Cheney,
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`and Brown are protected by absolute immunity and are entitled to dismissal from this suit.
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`Strike
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`The complaint is subject to dismissal based on the fact this suit is “frivolous” and “fails
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`to state a claim on which relief may be granted,” as well as “seeks monetary relief” against
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`defendants who are “immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i-iii). One of these
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` Although the Nixon Court did not specifically mention the office of Vice-President, it
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`is clear from the Court’s analysis that the rationale for absolute immunity applies to that
`office as well. 457 U.S. 749-757.
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`reasons alone would be sufficient to dismiss the case under § 1915(e) and is commonly
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`called a “strike” for purposes of applying § 1915(g) to future cases. In conjunction with §
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`1915(e)(2), subsection (g) requires an inmate to pay, at the time of filing, the full filing fee for
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`his case after he has had three prior cases “dismissed on the grounds that it is frivolous,
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`malicious, or fails to state a claim upon which relief may be granted,” with the exception,
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`“unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. §
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`1915(g). This case should be deemed a “strike” for purposes of 1915(g).
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`RECOMMENDATION
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`Accordingly, it is recommended that the District Judge dismiss the complaint without
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`prejudice and without issuance of service of process pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
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`(frivolous), (ii) (failure to state a claim), and (iii) (immune defendants).
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`It is further recommended that the dismissal of this case be deemed a “strike” pursuant
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`to 28 U.S.C. § 1915(e)(2) for purposes of application of 28 U.S.C. § 1915(g) in future filings
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`by Plaintiff.
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`February 9, 2009
`Greenville, South Carolina
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`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 Court Judge. Objections must specifically identify the
`portions of the Report and Recommendation to which objections are made and the basis for
`such objections. In 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 (4 Cir. 2005).
`th
`
`Specific written objections must be filed within ten (10) days of the date of service of
`this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time
`calculation of this ten-day period excludes weekends and holidays and provides for an
`additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant
`to Fed. R. Civ. P. 5 may be accomplished by mailing objections to:
`
`Larry W. Propes, Clerk
`United States District Court
`P. O. Box 10768
`Greenville, South Carolina 29603
`
`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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v.
`Collins, 766 F.2d 841 (4th Cir. 1985).
`
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