Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shorter v. Russell

United States District Court, D. South Carolina, Greenville Division

November 19, 2014

Samuel Shorter, III, # 341294, Plaintiff,
Officer Russell, C/O, and Michelle Ussery, Medical, Defendants.


KEVIN F. McDONALD, Magistrate Judge.

The plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the district court.


The plaintiff is an inmate at the Kershaw Correctional Institution ("KCI") of the South Carolina Department of Corrections ("SCDC"). At the time relevant to this case, the defendants Officer Russell and Nurse Michelle Ussery worked at KCI.

In his complaint, the plaintiff alleges that on August 29, 2013, he was tied to his bed and beaten and raped, presumably by his cellmate (doc. 1 at 3). He alleges that Officer Russell was on duty but asleep and failed to respond to his screams for help ( id. ). The plaintiff alleges that the next day the medical unit denied him a hospital visit and did not conduct a "proper rape analysis" ( id. ). Later, the plaintiff discovered blood in his stool and learned that he had contracted hepatitis C ( id. ). He claims that his constitutional rights were violated by Officer Russell's failure to conduct a security check at the time of the alleged incident, and by the medical unit's refusal to send him to the hospital for proper treatment.

The defendants filed an answer (doc. 25) on June 20, 2014, and a motion to dismiss (doc. 30) on July 2, 2014. The undersigned issued a Roseboro order (doc. 31) to apprise the plaintiff of the dispositive motion procedure. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).

In their motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the defendants contend that the complaint fails to set forth allegations sufficient to constitute any cause of action against either of them. Specifically, they argue that the plaintiff's allegations do not show deliberate indifference on the part of Officer Russell because the plaintiff has not shown that he was incarcerated under conditions posing a substantial risk of serious harm, nor that Officer Russell was aware of any such conditions. They further argue that Officer Russell's alleged failure to follow procedure does not constitute a constitutional violation. As for Nurse Ussery, the defendants point out that the complaint contains no allegations pertaining to her, and that she cannot be held liable for the actions of other persons under the doctrine of respondeat superior. The defendants also argue that medical neglect is not actionable under Section 1983 and that they are therefore entitled to qualified immunity.

The plaintiff filed his response to the motion to dismiss (doc. 36) on July 23, 2014. In his response, the plaintiff restates his allegations of the incident itself with more detail and again asserts that Officer Russell failed to conduct security checks. He also reports that "Sgt. Craig"[1] denied his request to "see medical" ( id. at 2). He also "blame[s] Nurse Ussery because they didn't follow proper procedure and have a rape kit done" ( id. ).

The plaintiff argues that his case should not be dismissed because he has a witness and because he has requested but not yet received documents relating to the incident, which he implies would be favorable evidence.

In addition, the plaintiff has submitted the following exhibits with his response: (1) a request to staff member (Form SCDC 19-11) dated February 10, 2014, in which the plaintiff requested treatment for hepatitis C (doc. 36-1 at 1); (2) a request to staff member dated July 1, 2014, relating to mental health treatment ( id. at 2); (3) a request to staff member dated October 15, 2013, relating to the plaintiff's request to be put back on his medication ( id. at 3); (4) grievance no. KRCI 0205-14 dated February 18, 2014, concerning the plaintiff's request for treatment of his hepatitis C (doc. 36-2); (5) a statement from inmate James McDonald stating that he "talked to [the plaintiff]" and is "aware of the [r]ape incident that took place in Oak Dorm at Kershaw Correctional Institution" (doc. 36-3); (6) a copy of interrogatories from defendants' counsel to plaintiff (doc. 36-4); and (7) a letter dated July 18, 2014, from plaintiff concerning protective custody and his placement (doc. 36-5).

The defendants filed a reply (doc. 38) on August 4, 2014, contending that the plaintiff's response fails to contradict their argument that the complaint is inadequate. Further, they argue that the exhibits filed with the plaintiff's response should not be considered in a Rule 12(b)(6) analysis, as the sufficiency of the complaint's allegations as to each of them is the determinative issue for the court, and the exhibits do not correct the deficiencies of the complaint identified by the defendants.


Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal if the opposing party fails to state a claim for which relief can be granted. Rule 8(a) sets forth a liberal pleading standard, which requires only a "short and plain statement of the claim showing the pleader is entitled to relief, ' in order to give the defendant fair notice of what... the claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of a plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999); Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992) ("A motion to dismiss under Rule 12(b)(6)... does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."). To survive a Rule 12(b)(6) motion, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and view them in the light most favorable to the non-moving party. See De Sole v. United States, 947 F.2d 1169, 1171 (4th Cir. 1991).

In analyzing a Rule 12(b)(6) motion to dismiss, a court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The undersigned agrees with the defendants that the court should exclude the exhibits attached to the plaintiff's response to the motion to dismiss. The documents are not "integral to the complaint, " and thus may not be considered without converting the motion to one for summary judgment. See Kensington Volunteer Fire Dept., Inc. v. Montgomery County, Md., 684 F.3d 462, 467 (4th Cir. 2012) ("Courts may also consider any documents attached to the complaint, as well as ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.