Opinion
Case No. 2:18-cv-345-RMG-MGB
10-22-2018
Antrell Jermaine Fordham, Plaintiff, v. John B. McCree, M.D.; Vernon Gore; Elizabeth A. Holcomb; Debra Middleton, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) This matter is before the Court upon Defendants' Motion for Summary Judgment, (Dkt. No. 32), and Plaintiff's Motion for an Order for Defendants to give Plaintiff a Snack with His Medication (Dkt. No. 35). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth herein, the undersigned recommends granting Defendants' motion and denying Plaintiff's motion.
BACKGROUND
In the instant action, Plaintiff complains about events that occurred while he was an inmate at Lieber Correctional Institution from "sometime in 2016" to the present day. (Dkt. No. 1 at 5.) Specifically, Plaintiff alleges that he has not been provided the necessary amount of food to take with his prescribed medication, Geodon (Ziprasidone). (Id.) According to Plaintiff, he must ingest 500 calories of food when he takes his Geodon "to absorb th[e] medication." (Id.) Plaintiff alleges Defendant Elizabeth Holcomb is the nurse who "put the orders into the cafeteria." (Id. at 6.) Plaintiff alleges that Defendant John B. McRee, M.D., dismissed his "medical treatment." (Id. at 5.) Plaintiff further alleges that Defendant "Vernon Gore is the head of food service." (Id. at 6.) The Complaint describes Plaintiff's injuries as "losing weight" and also states that Plaintiff "get[s] very hungry" when he takes Geodon. (Id. at 6.) Plaintiff alleges that Defendants have violated his constitutional rights under the Eighth Amendment and the Fourteenth Amendment. (Id. at 4.) He seeks "compensatory damages in the amount of 9,000 dollars" for his "losing weight." (Id. at 6.) In further briefing, Plaintiff indicates he seeks injunctive relief in that he "asks that an order be granted for Plaintiff to receive the five-hundred calorie snack every night, as prescribed." (Dkt. No. 47 at 2; see also Dkt. No. 35.)
Plaintiff filed a Complaint on February 6, 2018. (Dkt. No. 1.) On August 9, 2018, Defendants filed a Motion for Summary Judgment. (Dkt. No. 32.) By Order filed August 10, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 33.) On August 13, 2018, Plaintiff filed a Motion for an Order for Defendants to Give Plaintiff a Snack with His Medication. (Dkt. No. 35.) On September 19, 2018, Plaintiff filed a Response in Opposition to Defendants' Motion for Summary Judgment. (Dkt. No. 47.)
STANDARDS
A. Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B. Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
DISCUSSION
Defendants present several arguments in support of their Motion for Summary Judgment. (Dkt. No. 32-1.) They argue, inter alia, that: (1) Plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"); (2) Plaintiff has failed to establish an Eighth Amendment claim that Defendants were deliberately indifferent to his serious medical needs; and (3) Plaintiff has failed to establish a claim for violation of his constitutional rights under the Fourteenth Amendment. In support of their motion, Defendants have submitted: (1) an affidavit from Sherman L. Anderson, Chief of the Inmate Grievance Branch of the Office of General Counsel for the South Carolina Department of Corrections ("SCDC"); (2) Plaintiff's grievance records; (3) affidavits from Defendant Elizabeth Ringold ("Nurse Ringold"), Defendant Vernon Gore ("Mr. Gore"), and Defendant John B. McRee, M.D. ("Dr. McRee"); (4) Plaintiff's medical summary records from April 2, 2017 to February 8, 2018; (5) an affidavit from Deborah A. Middleton, LPN ("Nurse Middleton"); and (6) Plaintiff's Medication Administration Records from July 2017 through February 2018. (Dkt. Nos. 32-2 through 32-6.) The undersigned will address Defendants' arguments in turn.
In her affidavit, Defendant Elizabeth Ringold explains that she was formerly Elizabeth Holcomb. (Dkt. No. 32-3.)
A. Exhaustion of Administrative Remedies
Defendants first argue that Plaintiff has failed to exhaust his administrative remedies and his claims should therefore be dismissed. (Dkt. No. 32-1 at 5-7.) Section 1997e(a) of the PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). 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 also Porter v. Nussle, 534 U.S. 516 (2002).
The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency "an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court." Woodford, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, "[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court." Id.
Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). An inmate's failure to "properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983." Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002); see also Johnson v. Ozmint, 567 F. Supp. 2d 806, 815-16 (D.S.C. 2008) (granting summary judgment on the plaintiff's § 1983 claims for failure to exhaust his administrative remedies with respect to those claims).
The Complaint alleges that Plaintiff submitted a Step 1 Grievance asking for a snack with his medication, but the grievance was "never returned." (Dkt. No. 1 at 8-9.) Plaintiff attached to the Complaint two Request to Staff Member forms dated January 14, 2018, and January 25, 2018, in which he asks to be given a snack with his prescribed medication, Geodon. (Dkt. No. 1-1.)
Defendants have provided Plaintiff's Step 1 Grievance dated January 8, 2018, in which Plaintiff asks that he "get a snack with my medication daily." (Dkt. No. 32-2 at 29.) On February 6, 2018, the Warden found Plaintiff's grievance was "resolved," providing the following "Decision and Reason":
I have reviewed your concern. In your grievance you stated that for the past 6 months you have not been given a snack with your medication. You would like to receive a snack with your medication. Medical staff directives are being followed. However, your concern has been noted and additional oversight will be made to ensure that you receive a snack as prescribed by the medical staff when you take your medication. Therefore your grievance is resolved.(Id. at 30.) The Warden expressly advised Plaintiff of the procedure to appeal the Warden's Decision, stating:
If you disagree with this Warden's Decision (Decision), you may file an appeal by completing SCDC Inmate Grievance Form 10-5A, provided to you while serving you this Decision, and placing it in the Grievance Box at your local correctional institution within five (5) days of your receipt of this Decision.(Id. at 30.) Plaintiff signed the Step 1 Grievance on February 14, 2018, and indicated that he "accept[s] the Warden's decision and consider[s] the matter closed." (Id.)
Based on the evidence submitted to the Court, Plaintiff has not exhausted his administrative remedies with respect to his claims in this action. Plaintiff filed his Complaint on February 6, 2018, less than one month after submitting his Step 1 Grievance. (Dkt. No. 1.) His Step 1 Grievance was returned to him after the Complaint was filed, on February 14, 2018. (Dkt. No. 32-2 at 30.) Thus, at the time Plaintiff filed his Complaint he truthfully alleged that he had not received a response to his Step 1 Grievance. (Dkt. No. 1 at 8.) However, he has since received a response, and the Step 1 Grievance indicates that Plaintiff has "accept[ed] the Warden's decision." (Dkt. No. 32-2 at 30.)
In his response in opposition to Defendants' motion, Plaintiff claims that he "exhausted the grievance [process] on February 14, 2018." (Dkt. No. 47 at 2.) However, for Plaintiff to exhaust his administrative remedies with respect to his claims, he would have had to appeal the Step 1 Grievance. That did not happen here, and Defendant is therefore entitled to dismissal of this action without prejudice. See, e.g., Al-Haqq v. Byars, Case No. 2:13-cv-2043-JFA-WWD, 2014 WL 4389606, at *7 (D.S.C. Sept. 3, 2014) (granting summary judgment where "the Plaintiff had not exhausted his administrative remedies at the time of the filing of this case, as required by the PLRA"); Smith v. Spivey, Case No. 1:12-cv-29-RBH-SVH, 2012 WL 7621409, at *3 (D.S.C. Oct. 11, 2012), adopted by, 2013 WL 755926 (D.S.C. Feb. 27, 2013), aff'd, 546 F. App'x 174 (4th Cir. 2013) (recommending summary judgment be granted "based on Plaintiff's failure to exhaust his administrative remedies"); Johnson, 567 F. Supp. 2d at 815-16.
See Purdum v. Johns, Case No. 5:10-CT-3183-D, 2011 WL 5117574, at *2 (E.D.N.C. Oct. 25, 2011) ("A dismissal without prejudice allows the prisoner an opportunity to exhaust the administrative process and then file a new suit, if the prisoner so chooses."); see also Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) ("[A]ll dismissals under § 1997e(a) should be without prejudice."); Johnson v. Cannon, Case No. 4:08-cv-776-PMD, 2010 WL 936706, at *8 (D.S.C. Mar. 15, 2010), aff'd, 390 F. App'x 256 (4th Cir. 2010) (dismissing "without prejudice the remainder of Plaintiff's claims for failure to exhaust his administrative remedies").
B. Deliberate Indifference Claim under the Eighth Amendment
Defendants argue, in the alternative, that Plaintiff has failed to establish that Defendants were deliberately indifferent to his serious medical needs. (Dkt. No. 32-1 at 7-13.)
In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the Supreme Court held that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." To prevail on an Eighth Amendment deliberate indifference claim, "a prisoner must prove two elements: (1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a sufficiently culpable state of mind." Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (internal quotation marks and citations omitted).
The first element "is satisfied by a serious medical condition," while the second element "is satisfied by showing deliberate indifference by prison officials." Id. The subjective prong of a deliberate indifference claim requires Plaintiff to demonstrate that Defendants actually knew of and disregarded a substantial risk of harm to his person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). "Deliberate indifference is a very high standard—a showing of mere negligence will not meet it." Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (citing Estelle, 429 U.S. at 105-06); see also Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (holding that "[d]isagreements between an inmate and a physician over the inmate's proper medical care" are not sufficient to raise an Eighth Amendment claim pursuant to § 1983).
Plaintiff alleges that Defendants violated his Eighth Amendment rights by depriving him of the 500 calorie snack he needs to take with his prescribed medication, Geodon. He alleges that this deprivation has caused him to "los[e] weight." (Dkt. No. 1 at 6.) The "Medication Administration Records" ("medication records") establish that Plaintiff received the Geodon medication on certain dates in July, August, September, October, November and December of 2017, and on certain dates in January and February of 2018. (Dkt. No. 32-4 at 6-13.) Defendants have not provided Plaintiff's medication records prior to July of 2017. The medication records state that Geodon is to be taken "at bedtime by mouth with food." (Id.) In her affidavit, Nurse Middleton avers that she gave Plaintiff the medication as documented in the records and that the medication records "do not contain a place to document whether or not food was available with medication." (Dkt. No. 32-4 ¶¶ 5, 8.) Nurse Middleton does not remember "whether or not the inmate received food with each dosage of medication. If food was available, [she] would have offered it to the inmate." (Id. ¶ 8.)
Defendants have also provided Plaintiff's medical summary records dated from April 2, 2017 through February 8, 2018. (Dkt. Nos. 32-3 at 5-9; 32-6 at 5-29.) These records indicate that in November and December of 2017, Plaintiff complained about a planters wart on his foot and "numbness and tingling to his hands and feet." (Dkt. No. 32-6 at 11-13.) On December 7, 2017, Plaintiff asked to be seen "for . . . losing weight and needing a dietary supplement." (Id. at 11.) His weight is recorded as 159 pounds on that date. (Id.) Medical notes dated December 8, 2017, state that Plaintiff "has missed the last 3 PM doses of Benadryl and Geodon." (Id.) On January 2, 2018, Plaintiff complained that "he isn't receiving the care that he thinks he should be receiving." (Id. at 10.) This complaint appeared related to medication for Plaintiff's planters wart and Plaintiff's request for a "back brace." (Id.)
On September 27, 2017, Plaintiff's weight is recorded as 188 pounds. (Id. at 15.)
The medical records indicate that Plaintiff first mentioned wanting food to take with Godeon on January 12, 2018. (Id. at 9.) Specifically, Plaintiff reported that "he is not receiving a snack with his Geodon." (Id.) The medical provider directed medical to "please order snack for Geodon. Needs 500 calories to absorb the med[ication]." (Id.) The medical notes indicate Plaintiff weighed 156 pounds on January 19, 2018, and 155 pounds on February 7, 2018. (Id. at 7, 8.) Medical summary notes dated February 27, 2018 provide for "20 MG" of Geodon, "(adding snack to order)." (Id. at 7.) On March 16, 2018, Plaintiff complained that he "is not receiving 500 cal[ories] with his Geodon." (Id.) The medical provider directed medical to "please increase snack for Geodon, needs 500 calories to absorb med[ication]." (Id.)
Medical summary notes dated March 17, 2018 state
Spoke with above inmate regarding receiving his crackers and peanut butter with Geodon medications. Inmate states he doesn't need it during the day because he is already eating his meals throughout the day and is why he does not request it when receiving AM medications. States he has been receiving crackers and peanut butter at night when he mainly needs it with PM medication.(Id. at 5 (emphasis added).) The notes further state that "inmate is encourage[d] if above is not received to inform medical. Pill room is currently up to date with this information as well." (Id.)
The undersigned recommends granting summary judgment to Defendants as to Plaintiff's claim for deliberate indifference. Plaintiff's only alleged injury in this action is "losing weight." (Dkt. No. 1 at 6.) While the Fourth Circuit has found allegations of weight loss can support an Eighth Amendment claim, there is no evidence that ingesting Geodon without a five hundred calorie snack will cause weight loss. Cf. Wilson v. Johnson, 385 F. App'x 319, 320 (4th Cir. 2010) (finding the plaintiff's Eighth Amendment allegations "that the prison serves inadequate food portions and that he suffered physically by losing weight and experiencing stress as a result of being underfed on a daily basis" survive initial review under 28 U.S.C.§ 1915A(b)).
Dr. McRee's affidavit testimony directly refutes such a claim. In his affidavit, Dr. McRee avers that "Ingesting Geodon without a snack will not cause weight loss. A known side effect of Geodon is weight gain. Patients should eat 500 calories with Geodon in order to absorb the medication better, however not eating while taking the medication will not cause weight loss." (Dkt. No. 32-6 ¶ 8.) Plaintiff has not submitted any evidence that supports his allegations that taking Geodon without a snack causes weight loss. The submitted evidence shows that before Plaintiff first complained about not receiving a snack with his medication, he weighed 159 pounds. Over the next month, Plaintiff lost approximately 4 pounds. However, there is no evidence that the weight loss was caused by taking Geodon without a snack or that the documented weight loss is significant for a person of Plaintiff's height and age.
Dr. McRee avers that Plaintiff is 5 feet 8 inches tall (Dkt. No. 32-6 ¶ 8), while Plaintiff asserts that he is 6 feet, 1 inch tall (Dkt. No. 47 at 2).
Thus, other than Plaintiff's allegations, there is no evidence that Plaintiff suffered sufficiently serious harm as a result of any alleged constitutional violations. In other words, Plaintiff has failed to establish the objective prong of the Eighth Amendment. See Johnson v. Boakye, No. 3:15-cv-54, 2016 WL 5030367, at *4 (E.D. Va. Sept. 19, 2016) ("Because Johnson alleges no injury from Dr. Boakye's actions, he fails to satisfy the objective prong of the Eighth Amendment."); Brisbon v. Owens, No. 5:14-CT-3282-H, 2015 WL 12911350, at *2 (E.D.N.C. June 24, 2015), aff'd as modified, 627 F. App'x 252 (4th Cir. 2015) (dismissing Eighth Amendment claim where "plaintiff has alleged no injury resulting from his prescription not being refilled in a timely manner"); Nesbitt v. Cribb, Case No. 6:09-2350-RBH-WMC, 2010 WL 1838725, at *9 (D.S.C. Apr. 13, 2010), adopted by, 2010 WL 1838716 (D.S.C. May 5, 2010) (granting summary judgment on Eighth Amendment claim where "the plaintiff does not allege any damage as a result of [the defendant's] alleged actions").
Likewise, Plaintiff has failed to establish the subjective component of the Eighth Amendment. There is no evidence that Defendants knew of and disregarded an excessive risk to Plaintiff's health. On the two instances Plaintiff complained of a failure to receive a snack with his medication, the medical provider on duty directed medical to order a snack for Plaintiff. The most recent medical records indicate Plaintiff has been receiving peanut butter and crackers to take with his Geodon, and he was "encourage[d]" to "inform medical" if he did not receive this snack at the appropriate time. (Dkt. No. 32-6 at 5.)
In light of the foregoing, Plaintiff's Eighth Amendment claim should be dismissed. For the same reasons, the Court finds that Plaintiff is not entitled to the injunctive relief he seeks in his Motion for an Order for Defendants to Give Plaintiff a Snack with his Medication. (Dkt. No. 35.)
C. Fourteenth Amendment Claim
Defendants also assert that Plaintiff has failed to establish a claim under the Fourteenth Amendment. Plaintiff asserts that Defendants violated his Fourteenth Amendment rights by depriving him "of life, i.e., food with my meds." (Dkt. No. 1 at 4.)
In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege (1) that he or she "has been deprived of a right, privilege or immunity secured by the Constitution or laws of the United States," and (2) "that the conduct complained of was committed by a person acting under color of state law." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983); see also Gomez v. Toledo, 446 U.S. 635, 540 (1983); Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980). "Unless there has been a 'deprivation' by 'state action,' the question of what process is required and whether any provided could be adequate in the particular factual context is irrelevant, for the constitutional right to 'due process' is simply not implicated." Stone v. Univ. of Maryland Medical Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988).
As demonstrated above, Plaintiff has failed to establish any deprivation of a liberty interest as a result of Defendants' actions. Accordingly, his Fourteenth Amendment claim should also be dismissed. See, e.g., Brown v. Richland Cty. Sheriff's Dep't, Case No. 3:12-cv-3062-MBS, 2013 WL 5231492, at *3 (D.S.C. Sept. 13, 2013), aff'd, 552 F. App'x 265 (4th Cir. 2014) (granting summary judgment on the plaintiff's Fourteenth Amendment claim where "he has not set forth a liberty interest protected by the due process clause"); Taylor v. Blackwell, Case No. 1:13-cv-1493-MGL, 2014 WL 1668318, at *4 (D.S.C. Apr. 25, 2014) (same).
CONCLUSION
Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the Court DISMISS this action without prejudice based on Plaintiff's failure to exhaust his administrative remedies. In the alternative, Defendant's Motion for Summary Judgment (Dkt. No. 32) should be GRANTED on the merits, and this action should be dismissed with prejudice. The undersigned further RECOMMENDS that Plaintiff's Motion for an Order for Defendants to Give Plaintiff a Snack with his Medication (Dkt. No. 35) should be DENIED.
See Purdum, 2011 WL 5117574, at *2; see also Ford, 362 F.3d at 401; Johnson, 2010 WL 936706, at *8.
IT IS SO RECOMMENDED. October 22, 2018 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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).