United States District Court, D. South Carolina, Florence Division
MICHAEL D. GOINS, Plaintiff,
LT. HORNE, CPL. JAMES BYRD, OFC. SEWELL, and OFC. LINDSEY, each in his individual and official capacities; Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, Magistrate Judge.
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. He also asserts state law causes of action for gross negligence and negligent supervision. Plaintiff challenges the use of "strip searches" at Perry Correctional Institution as violative of his right to be free from cruel and unusual punishment and unreasonable searches and as violative of his due process rights. Presently pending before the Court are Plaintiff's Motion for Preliminary Injunction/Temporary Restraining Order (Document #28), Plaintiff's Motion for Relief (Document #48) and Defendants' Motion for Summary Judgment (Document #63). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison , 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' Motion for Summary Judgment, could result in dismissal of his Complaint. The undersigned granted Plaintiff two extensions of time to respond to Defendants' motion. Plaintiff has not filed a Response. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. Because these motions are potentially dispostive, this Report and Recommendation in entered for review by the district judge.
The facts in this case are largely not in dispute. In his Complaint, Plaintiff alleges that while housed in SMU in October of 2012, he was "strip searched" and required to "tak[e] off my SMU Jumpsuit, socks, shoes & boxers, [and] hand them to Cpl. Byrd to search. Byrd then asked me to lift my testicles, open my mouth, lift my tongue, hold my hands up and twist my hands around, turn around squat, cough, then bend over at the waist and spread my buttocks apart." Complaint p. 4. Defendants do not dispute that this is the strip search method they use for SMU inmates. See Horne Aff. ¶¶ 4-7; Byrd Aff. ¶¶ 3-6; Sewell Aff. ¶¶ 3-4; Lindsey Aff. ¶¶ 2-4. Specifically, they aver that prior to leaving the cell, a SMU inmate must remove all his clothing and pass it through the food flap, extend arms out and rotate that from palm up to palm down, raise his arms to allow the officer to see his armpits, lift his scrotum so the area can be viewed, turn around, raise both feet, spread his toes, squat, spread buttocks apart and cough, and open his mouth and move his tongue up and down and side to side. The inmate may then put his clothes back on. Id . Defendants further aver that this procedure is used as a security measure due to the higher security threat posed by SMU inmates. Lindsay Aff. ¶ 2; Sewell Aff. ¶ 5; Byrd Aff. ¶¶ 7-8; Horne Aff. ¶¶ 2-4, 8.
III. MOTION FOR PRELIMINARY INJUNCTION/TEMPORARY RESTRAINING ORDER
In this motion Plaintiff seeks an order enjoining Defendants from using the complained of strip search procedure. "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 129, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). All four requirements must be met. Id.
Strip searches such as those complained of by Plaintiff have been held to be within constitutional bounds. See Nelson v. South Carolina Dep't of Corrections, 2013 WL 4522788, *5 (D.S.C. August 26, 2013) (holding that body cavity searches, including requiring the inmate to spread his buttocks, does not amount to cruel and unusual punishment absent a punitive intent); Peckham v. Wisconsin Dep't of Corrections , 141 F.3d 694 (7th Cir.1998) (strip searches constitutional absent evidence they were performed for purposes of harassment or punishment); Franklin v. Lockhart , 883 F.2d 654 (9th Cir.1989) (approving twice-a-day visual body cavity searches for inmates in disciplinary and administrative segregation); Michenfelder v. Sumner , 860 F.2d 328, 332-333 (9th Cir.1988) (strip searches when entering and leaving cells not excessive even if prisoner escorted from one portion of a unit to the next); Goff v. Nix , 803 F.2d 358, 370-71 (8th Cir.1986) (visual body cavity search of segregation unit inmates before and after going to exercise area to prevent passage of contraband constitutional). As such, Plaintiff fails to make the requisite showing of likely success on the merits. Injunctive relief, such as the issuance of a preliminary injunction, is an extraordinary remedy that may be awarded only upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). Therefore, it is recommended that this Motion be denied.
IV. MOTION FOR RELIEF
In this Motion, Plaintiff alleges that Defendants Byrd and Horne have removed legal material and ask the court to order them to return them. This relief is different from that sought in Plaintiff's Complaint and, thus, is not properly before the court. Accordingly, it is recommended that this motion be denied.
V. MOTION FOR SUMMARY JUDGMENT
A. Failure to Exhaust Administrative Remedies
Defendants argue that Plaintiff has failed to exhaust his administrative remedies as to the claims raised in his Complaint. The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust the available administrative remedies before filing a § 1983 action concerning conditions of his confinement. 42 U.S.C.1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, "No 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). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies available through the grievance process within the SCDC. The United States Supreme Court has held that "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner , 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see Porter v. Nussle , 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Jones v. Smith , 266 F.3d 399 (6th Cir.2001) (exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway , 266 F.3d 718 (7th Cir.2001) (exhaustion required even though Plaintiff claimed he was afraid); see also Claybrooks v. ...